Nyundo & 2 others v Kinda & 2 others (Environment & Land Case 204 of 2017) [2024] KEELC 1684 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the applicants demonstrated substantial loss warranting stay of execution
Substantial loss was established because exhuming remains and moving developments from the land would occasion irrecoverable loss if the appeal succeeds.
The court accepted that mere length of stay on the land is insufficient, but found that exhuming deceased kin's remains and removing physical developments could occasion substantial loss, and since the appeal's outcome cannot be predicted, such efforts would be in vain and amount to irrecoverable loss if the appeal succeeded.
Whether the application was made without unreasonable delay
The 28-day interval between judgment and the motion was not unreasonable.
The judgment was delivered on 11/10/2023 and the motion lodged on 7/11/2023, an interval of about 28 days, which the court held could not be termed unreasonable delay under Order 42 rule 6(2).
Whether security for due performance of the decree was satisfied
The applicants expressly submitted themselves to conditions the court may impose, satisfying the security condition.
The applicants expressly rendered themselves subject to the court's decision regarding conditions for due performance of the decree; combined with satisfaction of the other conditions, the court was inclined to impose a condition requiring filing of the record of appeal within 60 days, failing which the stay lapses.
Legal principles established
#- An applicant for stay of execution pending appeal must satisfy the conditions of substantial loss, absence of unreasonable delay, and provision of security under Order 42 Rule 6(2).
- Mere length of stay on land is not sufficient to establish substantial loss.
Court orders
#- 1.Stay of execution of the judgment delivered on 11th October 2023 granted pending the inter partes hearing and determination of the application and pending appeal
- 2.Applicants to file and serve the record of appeal upon the respondents within 60 days of the order, in default of which the stay shall automatically lapse and execution shall proceed
- Jurisdiction invoked
- Order 42 rule 6(2) of the Civil Procedure Rules; Sections 1A and 1B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyundo & 2 others v Kinda & 2 others (Environment & Land Case 204 of 2017) [2024] KEELC 1684 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 7th November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1684/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.