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ELCAllowedNot stated in the extract· [2024] KEELC 1634 (KLR)

Mbola (Appealing through his recognized agent John Ndambuki Kitenge) v Masila (Environment and Land Appeal E014 of 2022) [2024] KEELC 1634 (KLR)

Environment and Land Court
13 March 2024
TMT. Murigi
2,667 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Makueni landowner won a temporary halt to a forced land transfer pending appeal, but only after proving real loss and depositing his title deed as security.

What this practically means

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Executive summary

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This is a first-instance interlocutory decision by the Environment and Land Court on a Notice of Motion dated 3rd August 2022 by the Appellant, John N. Kitenge, seeking stay of execution of a judgment delivered on 8th July 2022 by Hon. F. Makoyo PM in Kilungu ELC Case No. 9 of 2019. The decree compelled the Applicant to execute transfer of a portion measuring 36M by 63M excised from land parcel Makueni/Wautu/3290 to the Respondent, failing which the Executive Officer would sign the transfer forms. The Applicant asserted he never sold the land to the Respondent, the sale agreement having been signed by his grandson without his authority, and that transfer would render his appeal nugatory. The Respondent opposed, contending the appeal lacked merit, the Applicant came with unclean hands, and offering that any stay be conditioned on a deposit of Kshs 500,000. The court framed a single issue: whether the Applicant met the Order 42 Rule 6 conditions of substantial loss, absence of unreasonable delay, and security. Relying on Butt v Rent Restriction Tribunal, RWW v EKW, Consolidated Marine v Nampijja, Charles Wahome Gethi, Mukuma v Abuoga and Arun C Sharma, the court found substantial loss established, no delay (judgment 8th July 2022; application filed 3rd August 2022), and accepted the Applicant's offer of security. The application was allowed: stay of execution pending appeal was granted, conditional on deposit of the title deed within 30 days, with each party bearing its own costs.

Key legal issues

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01

Whether substantial loss may result to the Applicant if stay is not granted

Holding

Substantial loss was established because transfer of the disputed portion would destroy the substratum of the appeal.

Reasoning

The court noted the Applicant is the registered proprietor of the suit property, that the decree directs him to transfer a portion measuring 36M by 63M or the Executive Officer to sign the transfer forms, and that he denies executing any sale contract with the Respondent. Since the land could be transferred, sold, subdivided or charged to third parties, the appeal would be rendered nugatory. The court invoked Charles Wahome Gethi and Mukuma v Abuoga on proving substantial loss and preserving the status quo.

p. 5
02

Whether the application was made without unreasonable delay

Holding

The application was filed within reasonable time of the judgment.

Reasoning

Judgment was delivered on 8th July 2022 and the application was filed on 3rd August 2022, an interval of under a month. On those facts the court found no unreasonable delay, satisfying the second limb of Order 42 Rule 6(2).

p. 6
03

Whether security for the due performance of the decree had been given

Holding

The Applicant's offer to deposit Kshs 119,100 or the title deed satisfied the security condition.

Reasoning

Order 42 Rule 6(2)(b) is mandatory. The court relied on Arun C Sharma v Ashana Raikundalia on the purpose of security, namely guaranteeing due performance of the decree, not punishing the judgment debtor. The Applicant offered to deposit Kshs 119,100 or the title deed, and the court elected to require the title deed with a 30-day window.

p. 6

Legal principles established

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  • An applicant for stay of execution must prove, and not merely allege, substantial loss; must apply without unreasonable delay; and must furnish security for the due performance of the decree.
  • The purpose of stay of execution pending appeal is to preserve the subject matter in dispute so that the appeal, if successful, is not rendered nugatory.

Court orders

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  1. 1.Stay of execution of the judgment/decree granted pending the hearing and determination of the Applicant's appeal
  2. 2.The Applicant to deposit the title deed for land parcel No. Makueni/Wautu/3290 within 30 days from the date of delivery of the ruling, in default the stay orders to automatically lapse
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2); Order 51 Rules 1, 13 and 14

Cases cited (6)

  • Butt vs Rent Restriction Tribunal
    (1982) KLR 417
  • RWW vs EKW
    (2019) eKLR
  • Consolidated Marine vs Nampijja & Another
    Civil App No. 93 of 1989 (Nairobi)
  • Charles Wahome Gethi vs Angela Wairimu Gethi
    (2008) eKLR
  • Mukuma vs Abuoga
    (1988) KLR
  • Arun C Sharma vs Ashana Raikundalia T/A Raikundalia & Co. Advocates and 2 others
    (2014) eKLR
On appeal from
Senior Principal Magistrate's Court, Kilungu (Kilungu ELC Case No. 9 of 2019)
Kilungu ELC Case No. 9 of 2019
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6(1) and (2) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mbola (Appealing through his recognized agent John Ndambuki Kitenge) v Masila (Environment and Land Appeal E014 of 2022) [2024] KEELC 1634 (KLR)", Case Analysis (2024). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1634/eng@2024-03-13

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