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ELCPartially Allowed· [2024] KEELC 1383 (KLR)

Kasanga v Miriti & 3 others (Environment & Land Case 160 of 2009) [2024] KEELC 1383 (KLR)

Environment and Land Court
7 March 2024
1,288 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first-instance ruling on a Notice of Motion dated 4th December 2023 in which the Applicant sought a stay of execution of a judgment delivered by L. Komingoi, J on 12th October 2023, pending an intended appeal. The judgment under appeal had ordered the Applicant to vacate the suit property, face eviction, and demolish his structures. The Applicant argued that execution would cause substantial loss, including demolition of a residential building housing several families, that the appeal had been filed without delay (memorandum filed in October 2023), and offered to deposit Kshs 250,000 as security. The application was unopposed. Framing the sole issue as whether stay should be granted, the court applied Order 42 rule 6 of the Civil Procedure Rules. It found the application filed without inordinate delay, held that eviction and demolition would cause substantial loss and render the appeal nugatory, and accepted the offered security. Balancing the Applicant's interest in a viable appeal against the Respondent's right to enjoy the fruits of judgment, the court allowed the application subject to conditions: deposit of Kshs 250,000 in court within 30 days, filing of the record of appeal within 120 days, and automatic lapse of the stay upon default. Costs of the application were made to abide the outcome of the appeal. The judgment was delivered via Microsoft Teams on 7th March 2024 by Judy Omange, J.

Key legal issues

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01

Whether the application was made without unreasonable delay

Holding

The application filed on 4th December 2023 following the memorandum of appeal was filed without inordinate delay

Reasoning

The court compared the date of the judgment (12th October 2023), the filing of the memorandum of appeal and the filing of the stay application on 4th December 2023, and concluded there was no unreasonable delay, satisfying the first limb of Order 42 rule 6.

p. 2
02

Whether substantial loss would result if stay is not granted

Holding

Eviction and demolition of the Applicant's structures would cause substantial loss and render the appeal nugatory

Reasoning

Relying on the definition of substantial loss as preventing a successful appellant from holding a barren result, and noting the decree involved eviction and demolition of a residential building housing families, the court found demolition would render the appeal nugatory and stay would preserve the subject matter.

p. 3
03

Whether security for due performance of the decree had been given

Holding

The Applicant's offer to deposit Kshs 250,000 satisfied the security condition

Reasoning

The third condition under Order 42 rule 6 is furnishing security for due performance of the decree. The Applicant had offered to deposit Kshs 250,000, which the court accepted as sufficient security, incorporating it as a condition of the stay.

p. 3
04

Balancing the interests of the parties

Holding

The court must balance the Applicant's interest in preserving the appeal against the Respondent's right to enjoy the fruits of the judgment

Reasoning

The court recognised both parties' rights: the Applicant seeking to preserve the status quo so the appeal is not rendered nugatory, and the Respondent seeking to enjoy the fruits of judgment. The conditions imposed (deposit, filing record of appeal, lapse on default) reconcile these competing interests.

p. 3

Legal principles established

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  • Stay of execution pending appeal requires substantial loss, absence of unreasonable delay, and security for due performance of the decree
  • Stay preserves the subject matter where execution would render the appeal nugatory

Court orders

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  1. 1.Stay of execution pending the hearing and determination of the appeal is granted
  2. 2.The Applicant is to deposit Kshs 250,000 in court within 30 days
  3. 3.The Applicant is to file the record of appeal within 120 days
  4. 4.In default of compliance with (b) and (c) the orders of stay are to lapse
  5. 5.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1)
  • Civil Procedure RulesOrder 42 rule 6(2)
  • Civil Procedure RulesOrder 41 Rule 4 (as referenced in Kenya Shell Limited)

Cases cited (5)

  • GN Muema P/A (Sic) Mt view Maternity & Nursing Home v Miriam Bisher & another
  • Francis K. Chabari & another v Mwarania Gaichura Kairubi
    [2022] eKL
  • Geoffery Muriungi & another v John Rukunga M'imonyoso
  • Kenya Shell Limited v Benjamin Karuga Kigubu & another
    (1982-1988) KAR 108
  • Absalom Dora v Turbo Transporters
    [2013] eKLR
On appeal from
Environment and Land Court (L. Komingoi, J)
Not stated
Jurisdiction invoked
Order 42 rule 6(1) 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, "Kasanga v Miriti & 3 others (Environment & Land Case 160 of 2009) [2024] KEELC 1383 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1383/eng@2024-03-07

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