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ELCDismissedNot stated in the judgment (appeal from Machakos ELC Case No E11 of 2020)· [2024] KEELC 1227 (KLR)

Masai & another v Munguti & another (Environment and Land Appeal E043 of 2023) [2024] KEELC 1227 (KLR)

Environment and Land Court
5 March 2024
ANA. Nyukuri
1,125 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Machakos court refused to pause execution of a land judgment because the applicants offered no evidence that they would suffer real harm if execution proceeded.

What this practically means

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Executive summary

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The applicants, appellants in an appeal against the judgment of the lower court in Machakos ELC Case No E11 of 2020, moved the Environment and Land Court at Machakos by Notice of Motion dated 16th January 2024 seeking stay of execution of that judgment pending the appeal. They deposed that the lower court had ordered an injunction restraining them from accessing Plot No 603 while they lived thereon, and that execution would deprive them of their homes and livelihoods, causing substantial loss, and that the appeal had high chances of success. The 1st respondent, John Mumo Munguti, opposed the application, deposing that it rested on falsehoods never raised at trial; that the applicants had earlier undertaken to comply with the court's orders following a contempt ruling of 19th July 2021; that the suit property was vacant, unoccupied and unfarmed; and that he had already extracted the decree and fenced the property, attaching photographs in support. The court framed a single issue: whether the applicants had met the threshold in Order 42 Rule 6 of the Civil Procedure Rules for stay of execution pending appeal, which requires substantial loss, absence of unreasonable delay and security. Applying James Wangalwa & another v Agnes Naliaka Cheseto, the court held that demonstrating imminent execution alone is insufficient. Finding that no evidence established homes or livelihoods on the property, and that the applicants had earlier told the trial court they never interfered with the plot, the court concluded the property was vacant and substantial loss was not demonstrated. The application was dismissed with costs to the respondents.

Key legal issues

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Whether the applicants demonstrated substantial loss to warrant stay of execution pending appeal

Holding

The application was dismissed because the applicants produced no evidence of homes or livelihoods on the suit property, which was shown to be vacant and fenced

Reasoning

Order 42 Rule 6 requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and security. The applicants alleged they resided on and earned livelihoods from Plot No 603, but adduced no evidence. Photographs showed the property vacant and fenced, and the trial record showed the applicants had earlier stated they never entered or interfered with the plot. Mere allegation without evidentiary support cannot establish substantial loss.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate substantial loss; imminent execution alone is insufficient because execution is a lawful process

Court orders

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  1. 1.The application dated 16th January 2024 is dismissed
  2. 2.Costs to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (1)

  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
On appeal from
Lower court (Machakos ELC Case No E11 of 2020)
E11 of 2020
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "Masai & another v Munguti & another (Environment and Land Appeal E043 of 2023) [2024] KEELC 1227 (KLR)", Case Analysis (2024). Not stated in the judgment (appeal from Machakos ELC Case No E11 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1227/eng@2024-03-05

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