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ELCDismissed· [2024] KEELC 4223 (KLR)

Luis (Suing as the Executrix of Vincent Aghostinho Rafael Luis (Deceased) v Mwangi (Environment and Land Case 185 of 2016) [2024] KEELC 4223 (KLR)

Environment and Land Court
9 May 2024
AOA. O. Ombwayo
2,503 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner lost his bid to pause execution of a Nakuru court judgment because he could not show he would suffer real loss without a stay.

What this practically means

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Executive summary

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The applicant, Peter Muchiri Mwangi, moved the Environment and Land Court at Nakuru under Order 42 Rule 6 of the Civil Procedure Rules, 2010 seeking stay of execution of a judgment and decree delivered by Justice L.A. Omollo on 8th February 2024, pending a intended appeal to the Court of Appeal, on the grounds that he and his family used the suit land for cultivation and that execution would expose the land to sale, transfer, lease or mortgage, rendering the appeal nugatory. The respondent opposed, asserting she was in possession and active use of the property, had constructed two houses, cultivated and fenced the land, and had previously charged it to Delphis Bank and repaid the loan, showing she was a woman of means; the property was valued at Kshs 270,000,000. The applicant relied on Butt v Rent Restriction Tribunal, Kenya Shell Ltd v Kibiru and other authorities setting out the Order 42 Rule 6(2) conditions: substantial loss, no unreasonable delay, and security. The court, A.O. Ombwayo J, found the application filed within one month of judgment and therefore timeously. However, it held that substantial loss was not demonstrated: the applicant had never been in possession of the suit property since 1980, while the respondent was in possession, had built two houses, cultivated and fenced the land, and had repaid a loan secured on it. The application was dismissed with costs.

Key legal issues

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01

Whether the application was brought without unreasonable delay

Holding

The court found the application filed timeously, less than one month after judgment

Reasoning

Judgment was delivered on 8th February 2024 and the application was filed on 29th February 2024, a period of under one month. The court held this satisfied the delay requirement under Order 42 Rule 6(2) of the Civil Procedure Rules.

p. 5
02

Whether substantial loss was demonstrated

Holding

No substantial loss demonstrated; applicant never in possession since 1980 while respondent was in active possession and use

Reasoning

The respondent was in possession, had constructed two houses, cultivated and fenced the land, and had previously charged and repaid a loan secured on the property, showing she was a woman of means. Without substantial loss, stay cannot be granted under Order 42 Rule 6(2).

p. 5

Legal principles established

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  • Substantial loss is the cornerstone consideration in an application for stay of execution pending appeal
  • The power to grant stay pending appeal is discretionary but must be exercised judicially

Court orders

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  1. 1.Application for stay of execution dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure ActOrder 42 Rule 6(2)

Cases cited (7)

  • Rana Auto Selection Ltd v Lilian Osebe Moses
    [2021]
  • Butt v Rent Restriction Tribunal
    Civil App No. NAI 6 of 1979; [1982] KLR 417
  • Masisi Mwita v Damaris Wanjiku Njeri
    [2016] eKLR
  • In re Estate of Kakua Kioko (Deceased)
    [2018] eKLR
  • Sentrim Contracts Ltd v Joseph
  • Kenya Shell Ltd v Kibiru & Another
    [1986] KLR 410
  • Wilson v Church (No 2)
    (1879) 12 ChD 454
On appeal from
Environment and Land Court
Jurisdiction invoked
Order 42 Rule 6 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, "Luis (Suing as the Executrix of Vincent Aghostinho Rafael Luis (Deceased) v Mwangi (Environment and Land Case 185 of 2016) [2024] KEELC 4223 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4223/eng@2024-05-09

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