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ELCDismissedNotice of Motion dated 12th September, 2023 (arising from Kangundo CM ELC No. 188 of 2018)· [2024] KEELC 1335 (KLR)

Amboga v Ndeithi & 2 others (Environment and Land Appeal E016 of 2023) [2024] KEELC 1335 (KLR)

Environment and Land Court
14 March 2024
COChristine Ochieng
1,157 words in judgment
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The bottom line

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The Machakos Environment and Land Court refused to pause enforcement of a land judgment because the appellant showed no real loss, delayed, and offered no security.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Ochieng J) on a Notice of Motion dated 12th September 2023 in which the Appellant, Caleb Amboga, sought a stay of execution of the judgment delivered on 14th August 2023 in Kangundo CM ELC No. 188 of 2018 pending appeal. The lower court had directed subdivision of the suit land, transfer of ¾ of an acre to the 1st Respondent, and cancellation of the Certificate of Title for Donyo Sabuk/Komarock/Block 1/18279. The Appellant argued the appeal had high chances of success and would be rendered nugatory if the land was subdivided and transferred. The 1st Respondent opposed, contending she had been forcibly evicted and that the Appellant had disobeyed restraining orders of 30th January 2019, delayed two months in filing the application, and given no security. The 1st Respondent alone filed submissions, relying on Order 42 Rule 6(2) of the Civil Procedure Rules and Ena Investment Limited v Bernard Onchau Mose. The court framed a single issue: whether a stay should issue. Applying Order 42 Rule 6(2) and the decisions in Butt v Rent Restriction Tribunal and James Wangalwa v Agnes Naliaka Cheseto, the court held that the Appellant had not demonstrated substantial loss since he remained the registered proprietor of the vacant suit land, protected by a directed inhibition order, and had not offered security for due performance of the decree. The application was dismissed, costs were awarded in the cause, and the Appellant was directed to file and serve a Record of Appeal within thirty days, with the appeal to be expedited.

Key legal issues

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01

Whether the Appellant met the threshold for stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules

Holding

The application was unmerited because the Appellant neither demonstrated substantial loss nor offered security for due performance of the decree; the land remains registered in his name, is vacant, and an inhibition order protects the substratum of the suit.

Reasoning

The trial court's judgment directed subdivision, cancellation of title, and transfer of ¾ acre to the 1st Respondent. The Appellant remained the registered proprietor of vacant land, so execution would not cause him substantial loss. The court found he had not offered security for due performance of the decree and opted for expedition of the appeal rather than a stay, associating itself with the cited authorities.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must satisfy the conditions in Order 42 Rule 6(2): substantial loss, absence of unreasonable delay, and provision of security for due performance of the decree.

Court orders

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  1. 1.The Appellant's Notice of Motion Application dated the 12th September, 2023 is disallowed
  2. 2.Costs will be in the cause
  3. 3.The Appellant to file and serve a Record of Appeal in thirty (30) days from the date of the ruling

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (3)

  • Ena Investment Limited vs Bernard Onchau Mose & Jane Bosibori Onchau & 2 Others
    (2022) eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    (2012) eKLR
On appeal from
Chief Magistrate's Court, Kangundo
Kangundo CM ELC No. 188 of 2018
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)

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, "Amboga v Ndeithi & 2 others (Environment and Land Appeal E016 of 2023) [2024] KEELC 1335 (KLR)", Case Analysis (2024). Notice of Motion dated 12th September, 2023 (arising from Kangundo CM ELC No. 188 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1335/eng@2024-03-14

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