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ELCAllowedNotice of Motion dated 15th February 2024 (arising from judgment delivered 14th December 2023)· [2024] KEELC 1758 (KLR)

Amza Limited v Mwangi & 2 others (Environment & Land Case 50 of 2021) [2024] KEELC 1758 (KLR)

Environment and Land Court
11 April 2024
721 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nakuru halted execution of a land judgment because demolishing a four-storey building before the appeal is decided would cause irreversible loss.

What this practically means

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Executive summary

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Daniel Waithanji Mwangi, described as the 1st defendant in the underlying suit, moved the court by Notice of Motion dated 15th February 2024 seeking stay of execution of the judgment delivered on 14th December 2023 and all consequential orders pending an appeal he had already filed in the Court of Appeal (Civil Appeal No. E015 of 2024). He argued that execution would render the appeal nugatory, that he had constructed a four-storeyed building on the suit premises and would suffer substantial loss if required to remove the buildings and structures and later succeed on appeal, and that he was ready to furnish security. The respondent, through the plaintiff's advocate Owino Opiyo, opposed the application, contending that the court was functus officio, that no security or its value had been given, and that neither substantial loss nor the nugatory-appeal test had been demonstrated. The court identified the governing law as Order 42 Rule 6(1) and (2) of the Civil Procedure Rules 2010, which requires substantial loss, absence of unreasonable delay and security. It found no inordinate delay, noting the filing date fell close to the court vacation; it found substantial loss established because the applicant would have to demolish buildings and structures before the appeal was determined; and it held it fair to preserve the position in case the Court of Appeal reached a different decision. Stay of execution pending appeal was granted conditional on the applicant depositing in court security valued at Ksh 2,000,000 or cash of Kshs 1,000,000 as security for costs and execution of the decree.

Key legal issues

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01

Whether the application was filed without unreasonable delay

Holding

The court found no inordinate delay despite the application being filed roughly two months after judgment.

Reasoning

The judgment was delivered on 14th December 2023 and the application filed on 16th February 2024. The court considered that these dates fall close to the court vacation, which excuses the interval, and concluded there was no inordinate delay in bringing the motion under Order 42 Rule 6.

p. 2
02

Whether substantial loss was demonstrated

Holding

Substantial loss was established because the applicant would have to remove buildings and structures before knowing the appeal outcome.

Reasoning

The applicant had constructed a four-storeyed building on the suit premises. Executing the decree would compel removal of those developments, and if the Court of Appeal reversed the judgment, the demolition would cause loss that could not readily be undone. This satisfied the substantial-loss threshold in Order 42 Rule 6(2)(a).

p. 2
03

Whether security should be a condition of stay

Holding

Stay was granted on condition that the applicant deposits security in court.

Reasoning

Order 42 Rule 6(2)(b) requires security for the due performance of the decree. The applicant had offered to furnish security. The court balanced the parties' interests by granting stay conditional on a deposit of Ksh 2,000,000 in value or Kshs 1,000,000 in cash as security for costs and execution.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal must show substantial loss, absence of unreasonable delay, and offer security.
  • Removing permanent developments on suit property before the determination of an appeal constitutes substantial loss.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 14th December 2023 and all consequential orders pending appeal granted
  2. 2.Stay conditioned on the applicant depositing in court security of the value of Ksh 2,000,000, or cash of Kshs 1,000,000 as security for costs and execution of the decree

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 42 Rule 6(1) and (2)
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules 2010

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, "Amza Limited v Mwangi & 2 others (Environment & Land Case 50 of 2021) [2024] KEELC 1758 (KLR)", Case Analysis (2024). Notice of Motion dated 15th February 2024 (arising from judgment delivered 14th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1758/eng@2024-04-11

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