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ELCDismissedMotion dated 3/8/2022 (suit arising from Judgment delivered 28/7/2022)· [2024] KEELC 1561 (KLR)

Mukua & another v Kariuki & 2 others (Environment & Land Case 521 of 2017) [2024] KEELC 1561 (KLR)

Environment and Land Court
14 March 2024
1,457 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to pause execution of a land judgment because the applicants showed no real loss and offered no security.

What this practically means

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Executive summary

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The Plaintiffs/Applicants moved the court by Motion dated 3/8/2022, under Section 3A of the Civil Procedure Act and Order 42 Rules 1 & 2 of the Civil Procedure Rules, seeking stay of execution of the judgment and ruling delivered on 28/7/2022, whose effect was cancellation of the title to the suit land held in the 1st Plaintiff's name, pending their intended appeal to the Court of Appeal. The supporting affidavit of the 1st Plaintiff, James Mwaniki Mukua, asserted that the appeal had high chances of success and that execution would render it nugatory. The Defendants opposed through Grounds of Opposition and a Replying Affidavit by the 1st Defendant, Mark Mugekenyi Kariuki, contending that the application was frivolous, disclosed no substantial loss, and that they were in possession and had developed the property worth over Kshs. 50M, with damages available as an alternative remedy. The court identified the sole issue as whether the Applicants were entitled to stay, and applied the threefold conditions under Order 42 rule 6: substantial loss, timely filing and security. Relying on James Wangalwa v Agnes Naliaka Cheseto and Machira v East African Standard, it held that execution alone does not constitute substantial loss and that the Defendants' uncontroverted averments of possession and development negated any claim of irreversible prejudice. Though the application was filed timeously, no security was offered. The application was dismissed with costs.

Key legal issues

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01

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

Holding

No substantial loss was demonstrated; the Defendants' averments of possession and extensive developments on the suit land were uncontroverted.

Reasoning

The court adopted the tests in James Wangalwa and Machira: the applicant must specify the loss and show that execution would irreparably negate the essential core of their position. Mere apprehension that the Defendants might charge or alienate the land was insufficient, especially as the Defendants' possession and Kshs. 50M developments were uncontroverted. Stay is not granted on vague speculation.

p. 4
02

Whether the application was filed without unreasonable delay

Holding

Yes, the application was filed timeously, being dated the same day as the judgment.

Reasoning

The court found the application dated 3/8/2022, the same date the judgment was delivered on 28/7/2022, satisfied the timeliness limb of Order 42 rule 6(2)(a). This limb was therefore satisfied, but the failure on substantial loss and security was fatal.

p. 4
03

Whether the Applicants offered security for the due performance of the decree

Holding

No security was proffered; this limb of Order 42 rule 6(2)(b) failed.

Reasoning

Order 42 rule 6(2)(b) requires the applicant to furnish security ordered by the court. The court observed the Applicants did not readily proffer any security. The Defendants' submissions also flagged the absence of any offer for security. This third condition was thus unfulfilled.

p. 4

Legal principles established

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  • Execution by itself does not amount to substantial loss; the applicant must show a state of affairs that would be rendered irreversible if stay is not granted.

Court orders

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  1. 1.Application dated 3/8/2022 dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 42 Rule 1 & 2
  • Civil Procedure RulesOrder 42 rule 6(1) and (2)
  • Civil Procedure RulesOrder 42 Rule 19 (referred to in Grounds of Opposition)

Cases cited (3)

  • RWW Vs. EKW
    [2019] eKLR
  • James Wangalwa & Another Vs. Agnes Naliaka Cheseto
    [2012] eKLR
  • Machira T/A Machira & Company Advocates Vs. East African Standard (No 2)
    2002 2 KLR
Jurisdiction invoked
Section 3A Civil Procedure Act and Order 42 Rule 1 & 2 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, "Mukua & another v Kariuki & 2 others (Environment & Land Case 521 of 2017) [2024] KEELC 1561 (KLR)", Case Analysis (2024). Motion dated 3/8/2022 (suit arising from Judgment delivered 28/7/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1561/eng@2024-03-14

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