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ELCDismissedApplication dated 12th March, 2024 (ELC, Bungoma)· [2024] KEELC 3934 (KLR)

Osman & another v Wephukulu & another (Environment & Land Case 57 of 2016) [2024] KEELC 3934 (KLR)

Environment and Land Court
16 May 2024
1,783 words in judgment
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The bottom line

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The Environment and Land Court in Bungoma refused to pause execution of a land judgment because the losing party showed no real harm from enforcement.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Bungoma (E.C. Cherono, ELC Judge) on a notice of motion dated 12th March 2024 in which the Plaintiff/Applicants sought a stay of execution of the judgment and decree of the same court delivered on 26th February 2024, pending an intended appeal to the Court of Appeal. The application was unopposed, no response having been filed, but the applicants filed submissions invoking Order 42 Rule 6 of the Civil Procedure Rules. The court framed a single issue: whether the applicants had demonstrated that stay was merited. It set out the three conditions under Order 42 Rule 6(2) - substantial loss, application without unreasonable delay, and security - supplemented by the overriding objective in sections 1A and 1B of the Civil Procedure Act. It found the application filed about two weeks after judgment, with a Notice of Appeal lodged on the judgment date, and security offered; but after analysing the testimony and exhibits it concluded that the impugned judgment was sound and that the applicants had not established substantial loss, noting the decree involved a cross-transfer of land parcels East Bukusu/South Kanduyi/4626 and 4627 and that the respondents had obtained the decree in preparation for execution. Balancing the successful litigant's right to the fruits of the judgment, the court dismissed the application with costs to the Respondents on 16th May 2024.

Key legal issues

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01

Whether stay of execution pending appeal was merited

Holding

The application was dismissed for failure to demonstrate substantial loss

Reasoning

The court restated the Order 42 Rule 6(2) conditions: substantial loss, no unreasonable delay and security. It found the application filed about two weeks after judgment, hence without unreasonable delay, and that security was offered. However, after analysing the testimony and exhibits, the court found the impugned judgment informed by facts and law and that the applicant had not established how he would suffer substantial loss if stay was not granted. Balancing the successful litigant's right to the fruits of judgment, the application failed.

p. 4

Legal principles established

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  • An applicant for stay of execution pending appeal must satisfy the conditions of substantial loss, application without unreasonable delay, and security for due performance of the decree

Court orders

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  1. 1.Dismissal of the applicants' application dated 12th March, 2024
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 66
  • Civil Procedure ActSections 1A and 1B (overriding objective)
  • Appellate Jurisdiction Act, Cap 9 Laws of KenyaSection 3(1)
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Court of Appeal RulesRule 75

Cases cited (6)

  • Masisi Mwita V Damaris Wanjiku Njeri
    Civil Appeal No.107 of 2015 (2016) eKLR
  • Stephen Wanjohi v Central Glass Industries Ltd
    Nairobi HCC No.6726 of 1991
  • Antoine Ndiaye v African Virtual University
    [2015] eKLR
  • Mukuma V Abuoga
    (1988) KLR 645
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • RWW v EKW
    [2019] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules - stay of execution pending appeal to the Court of Appeal from this Court's judgment of 26th February 2024

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, "Osman & another v Wephukulu & another (Environment & Land Case 57 of 2016) [2024] KEELC 3934 (KLR)", Case Analysis (2024). Application dated 12th March, 2024 (ELC, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3934/eng@2024-05-16

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