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ELCPartially AllowedNot stated in the ruling· [2024] KEELC 3937 (KLR)

Mungai & another (Suing as the Trustees of Gatimu Dispensary Self – Help Group) v Registered Trustees of St Edward’s Catholic Church (Environment & Land Case 47 of 2014) [2024] KEELC 3937 (KLR)

Environment and Land Court
20 May 2024
1,823 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Nakuru court granted a church only a conditional stay of eviction, ruling that losing land and facing eviction alone does not prove substantial loss without specific evidence.

What this practically means

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Executive summary

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This ruling by M. A. Odeny J of the Environment and Land Court at Nakuru, delivered on 20th May 2024, determines a Notice of Motion dated 16th October 2023 by the defendant/Applicant seeking a stay of execution of the judgment issued on 22nd September 2023 pending an intended appeal to the Court of Appeal. The defendant, a church entity on land parcel Mau Narok/Siapei Block 7/445, through its parish priest Fr. Denis Wanyonyi, argued it would suffer substantial loss as church services would be disrupted if evicted, rendering the intended appeal nugatory. The plaintiffs/respondents countered that a successful litigant is entitled to the fruits of judgment, that the defendant had not demonstrated substantial loss, and offered that any stay be conditioned on a deposit of the market value of the property or costs. The court isolated a single issue: whether the defendant met the Order 42 Rule 6 threshold of no unreasonable delay, substantial loss and security. It found the application filed timeously, but held that the pleaded substantial loss - eviction - was merely the outcome of the litigation and not tenable, requiring the applicant to go beyond bare allegations. On security, invoking the balance between a successful litigant's fruits of judgment and an appellant's safeguard from a nugatory appeal, the court granted a conditional stay: the applicant to deposit Kshs. 500,000/= in a joint interest-earning account of the advocates on record within 30 days, failing which the stay lapses. Costs were not addressed. The application was therefore partially allowed.

Key legal issues

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01

Whether the application was filed without unreasonable delay

Holding

Filed timeously - judgment was delivered on 22nd September 2023 and the application filed on 17th October 2023

Reasoning

The court compared the date of delivery of judgment with the date of filing of the stay application and found the interval of less than a month to be a timely filing, satisfying the delay limb of Order 42 Rule 6.

p. 3
02

Whether the defendant will suffer substantial loss if stay is not granted

Holding

Mere eviction as an outcome of the litigation does not amount to substantial loss; the applicant failed to demonstrate it

Reasoning

Relying on James Wangalwa, Charles Wahome Gethi and Peter Rugu Gikanga, the court held that execution is a lawful process and eviction is simply the outcome of the litigation. The applicant needed to show how eviction would create a state of affairs irreparably affecting it, not merely allege that loss follows from losing the suit.

p. 3
03

Whether security for the due performance of the decree should be given

Holding

The court balanced the successful litigant's interest with the applicant's right of appeal and imposed a cash deposit as security

Reasoning

Following Kenya Commercial Bank v Sun City Properties, the court held the competing interests of a successful litigant entitled to the fruits of judgment and an appellant safeguarded from a nugatory appeal should be balanced through suitable security. The applicant expressed willingness to abide by conditions, prompting a conditional stay with a Kshs. 500,000 deposit.

p. 4

Legal principles established

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  • Eviction resulting from execution of a court order is not by itself substantial loss; the applicant must go further and demonstrate the specific substantial loss

Court orders

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  1. 1.Conditional stay of execution of the judgment/decree of the court granted
  2. 2.The Applicant to deposit Kshs. 500,000/= in a joint interest earning account of the advocates on record within 30 days from the date of the ruling, failing which the stay lapses

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil ProcedureOrder 21 [1]

Cases cited (11)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Consolidated Marine v Nampijja & another
    Civil App. No. 93 of 1989 (Nairobi)
  • Trustees Chrisco Church Nakuru vs Samwel Kibowen Towett & Others
    [2017] eKLR
  • Samvir Trustee Limited vs Guardian Bank Limited
    [2007] eKLR
  • J.P Machira T/A Machira & Co. Advocates vs East Africa Standard Limited
    [2001] eKLR
  • Everlyn Jebitok Keter v Henry Kiplagat Muge & 2 Others
    [2011] eKLR
  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Noor Said v Mary Mwawasi Manga
    [2022] eKLR
  • Peter Rugu Gikanga & another v Weston Gitonga & 10 others
    [2014] eKLR
  • Charles Wahome Gethi v Angela Wa/R/Mu Gethi
    Court of Appeal Civil Application No. NAI 302 of 2007 UR 205/2007
  • Kenya Commercial Bank Limited v Sun City Properties Limited & 5 others
    [2012] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal to the Court of Appeal)

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, "Mungai & another (Suing as the Trustees of Gatimu Dispensary Self – Help Group) v Registered Trustees of St Edward’s Catholic Church (Environment & Land Case 47 of 2014) [2024] KEELC 3937 (KLR)", Case Analysis (2024). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3937/eng@2024-05-20

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