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ELCAllowedELC Appeal (Embu) - arising from Siakago Magistrates' Court ELC No. 12 of 2020 (application dated August 11, 2022)· [2024] KEELC 4009 (KLR)

Gichobi v Gathua (Environment and Land Appeal E004 of 2022) [2024] KEELC 4009 (KLR)

Environment and Land Court
12 March 2024
1,237 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court paused an eviction, but only after the appellant deposited Kshs. 50,000 as security, proving stay orders come with conditions.

What this practically means

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Executive summary

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The appellant, Samwel Muriithi Gichobi, moved the Environment and Land Court at Embu by a Notice of motion dated August 11, 2022 under Order 42 Rule 6 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, seeking a stay of execution of the decree of the Magistrates Court, Siakago in ELC No. 12 of 2020 delivered on April 13, 2022, which ordered his eviction from suit land he has occupied and developed since 2007. The respondent opposed the application as incompetent, alleging undue delay, that the appellant bought the property from an impostor while she was hospitalised, and that no security for costs had been provided. In determining the application the court restated that stay is not a right and that the successful litigant is entitled to the fruits of judgment, and applied the Order 42 Rule 6 threshold of substantial loss, reasonable time and security, together with the arguability and nugatory-appeal test. The court found that eviction would cause the appellant substantial loss, that the appeal was arguable and would be rendered nugatory if his home were demolished, and that a delay of about four months (corrected from the alleged five) was not inordinate, citing Jaber Mohsen Ali v Priscilla Boit and RWW v EKW. The application was allowed with stay granted, conditional on the appellant depositing Kshs. 50,000 as security for costs within sixty days, failing which the stay lapses; costs were to be in the cause.

Key legal issues

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01

Substantial loss

Holding

Eviction of the appellant from land where he resides with his family amounts to substantial loss.

Reasoning

The lower court judgment decreed eviction. The court found that if eviction were carried out while the appellant resides on and has developed the land, he would suffer substantial loss, satisfying the first limb of Order 42 Rule 6.

p. 2
02

Reasonable time

Holding

A four-month period between judgment and the application was not inordinate delay.

Reasoning

The respondent alleged a five-month delay; the court corrected this to about four months and held, relying on Jaber Mohsen Ali v Priscilla Boit, that unreasonableness of delay depends on the circumstances of each case, including the time, money and expertise needed to prepare an appeal.

p. 2
03

Security for costs

Holding

Stay was granted conditional on the appellant depositing Kshs. 50,000 as security within sixty days.

Reasoning

Order 42 Rule 6 requires an applicant for stay to furnish security. The court granted stay on condition that the appellant deposit 50,000 as security for costs within sixty days, failing which the stay lapses.

p. 3

Legal principles established

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  • Stay of execution is not a right; it is granted only where the statutory threshold under Order 42 Rule 6 is met.

Court orders

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  1. 1.Stay of execution of the decree of the Magistrates Court, Siakago in ELC No. 12 of 2020 dated April 13, 2022 pending hearing and determination of the appeal
  2. 2.Appellant to deposit Kshs. 50,000 as security for costs within sixty (60) days failing which the order of stay will lapse
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure Act (Cap 21)section 3A

Cases cited (2)

  • Jaber Mohsen Ali & another vs. Priscilla Boit & another
    E & L no. 200 of 2012 [2014] eKLR
  • RWW vs EKW
    [2019] eKLR
On appeal from
Magistrates Court, Siakago
ELC No. 12 of 2020
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules and section 3A of the Civil Procedure Act (Cap 21)

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, "Gichobi v Gathua (Environment and Land Appeal E004 of 2022) [2024] KEELC 4009 (KLR)", Case Analysis (2024). ELC Appeal (Embu) - arising from Siakago Magistrates' Court ELC No. 12 of 2020 (application dated August 11, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4009/eng@2024-03-12

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