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ELCAllowedNotice of Motion dated 25th July 2023 in Bungoma CMC ELC No. E062 of 2021· [2024] KEELC 1080 (KLR)

Mululu & 4 others v Barasa & 2 others (Environment and Land Appeal 3 of 2023) [2024] KEELC 1080 (KLR)

Environment and Land Court
29 February 2024
ECE.C Cherono
1,930 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Bungoma halted execution of a land decree pending appeal, finding the property would be lost if sold before the appeal was heard.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Bungoma (E.C Cherono J) on a Notice of Motion dated 25th July 2023 by Duncan Barasa Mululu seeking stay of execution of the decree delivered on 19th July 2023 in Bungoma CMC ELC proceedings concerning land parcel LR No. E. Bukusu/n.kanduyi/630, pending his intended appeal. The application was brought under Section 3 & 3(a) of the Civil Procedure Act and Order 42 Rule 6(1) & (2) of the Civil Procedure Rules. The respondent opposed, arguing that execution had not begun, that only a decree on costs was sought to be stayed, and that the applicants lacked capacity not being beneficiaries or administrators of the deceased registered proprietor's estate, having been removed from the grant. The applicants countered that they were sued as beneficiaries and that the application sought stay of the entire judgment. The court identified the three conditions under Order 42 Rule 6(2): substantial loss, absence of undue delay, and security. On substantial loss, the court found the property registered in the name of a deceased person was at risk of disposal and that preservation was required. A six-day delay was held not inordinate. Although no security was offered, the court exercised its discretion in the applicants' favour. The application was allowed: stay of execution was granted pending the intended appeal, the record of appeal was to be filed and served within 30 days, mention set for 11/4/2024, and costs were to abide the intended appeal.

Key legal issues

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01

Substantial loss

Holding

The Applicants would suffer substantial loss as the suit land, registered in the name of a deceased person, risks disposal to third parties and the beneficiaries would be disinherited if the appeal succeeds.

Reasoning

The court perused the trial court's orders, noting order (b) directed cancellation of title and transfer to the respondents. The suit property is registered in the name of a deceased proprietor. Preservation of the property was held necessary in the interest of justice since the applicants stand to suffer substantial loss should the appeal succeed.

p. 3
02

Undue delay

Holding

The application filed six days after the judgment was not delayed unduly.

Reasoning

The impugned judgment was delivered on 19th July 2023 and the application filed on 25th July 2023, a period of about six days. The court found such delay not inordinate and held the application was brought without undue delay.

p. 4
03

Security

Holding

The applicants had not offered security, but stay was granted in the court's discretion balancing the successful litigant's rights.

Reasoning

The court noted the applicants had not offered anything or shown willingness to deposit security. However, recognising that stay is a discretionary order to be exercised judiciously, and given the substantial loss and preservation concerns, the court allowed the application while ordering costs to abide the appeal.

p. 4

Legal principles established

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  • The purpose of stay of execution pending appeal is to preserve the subject matter so the appeal, if successful, is not rendered nugatory.
  • A short delay of six days in filing a stay application is not inordinate delay.
  • Security under Order 42 Rule 6 is to guarantee due performance of the decree, not to punish the judgment debtor.

Court orders

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  1. 1.A stay of execution of the judgment/decree issued in CMC-ELC No. 62 of 2021 pending hearing and determination of the Applicants' intended Appeal
  2. 2.The Appellant/Applicant to compile, file and serve his record of Appeal within 30 days from the date hereof
  3. 3.Mention on 11/4/2024 for directions
  4. 4.Costs shall abide the intended appeal

Authorities

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Legislation

  • Civil Procedure ActSection 3 & 3(a)
  • Civil Procedure RulesOrder 42 Rule 6(1) & (2)

Cases cited (6)

  • Consolidated Marine v Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)
  • George Masibayi Wafula (Suing as the personal and legal representative of the estate of the late Henry Wafula Masibayi-dcd) v Richard Wafula Masinde
    ELCA No. E017 of 2022
  • Kenya Shell Limited v Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) KAR 1018
  • Machira T/A Machira & Co. Advocates v East African Standard (No 2)
    [2002] KLR 63
  • Aron C. Sharma v Ashana Raikundalia T/A Rairundalia & Co. Advocates
  • Butt v Rent Restriction Tribunal
    [1982] KLR 41
On appeal from
Chief Magistrate's Court, Bungoma (ELC)
CMC ELC No. E062 of 2021
Jurisdiction invoked
Order 42 Rule 6(1) & (2) of the Civil Procedure Rules and Section 3 & 3(a) of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mululu & 4 others v Barasa & 2 others (Environment and Land Appeal 3 of 2023) [2024] KEELC 1080 (KLR)", Case Analysis (2024). Notice of Motion dated 25th July 2023 in Bungoma CMC ELC No. E062 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1080/eng@2024-02-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.