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ELCAllowedNotice of Motion dated 28.08.2023 (arising from Embu Chief Magistrate Court MC ELC No 132 of 2018)· [2024] KEELC 5141 (KLR)

Njeru v Kinyua (Environment and Land Appeal E015 of 2023) [2024] KEELC 5141 (KLR)

Environment and Land Court
11 June 2024
AKA. Kaniaru
2,281 words in judgment
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The bottom line

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The Environment and Land Court paused enforcement of a land judgment because the loser had lived on the land for 23 years and filed her appeal on time.

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 Embu (A. Kaniaru, J) on a Notice of Motion dated 28.08.2023 by Teresia Wangithi Njeru, the appellant and 2nd defendant in the lower court, seeking stay of execution of the judgment delivered on 25.07.2023 in Embu Chief Magistrate Court MC ELC No 132 of 2018 against her in favour of Fredrick Kinyua. The dispute concerns LR No Kagaari/Weru/4392, a subdivision of LR No Kagaari/Weru/382. The applicant argued the appeal was arguable, the application was made timeously, and she faced eviction and exposure of the land to adverse dealings, rendering the appeal nugatory. The respondent contended the conditions for stay were unmet, the decree had already been executed, and no security had been offered. The court framed a single issue: whether the applicant was entitled to stay of execution pending appeal. Applying Order 42 rule 6(2) and the Butt v Rent Restriction Tribunal guidelines, the court found a delay of about one month and 25 days not unreasonable, accepted her undisputed 23-year occupation and fear of eviction as demonstrating substantial loss, and found the memorandum of appeal raised triable issues. The respondent's claim that the decree had been executed was unsupported by evidence. Although the applicant had not volunteered security, the court exercised its discretion to direct security. The application was allowed in terms of prayers (3) and (4): stay of the lower court judgment on condition that the applicant deposits Kshs. 50,000 as security within 60 days, failing which the stay lapses; she is also to compile, file and serve a record of appeal within 60 days. Costs were reserved to the cause.

Key legal issues

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Whether the applicant satisfied the conditions for stay of execution pending appeal under Order 42 rule 6(2) of the Civil Procedure Rules

Holding

The application was allowed. The court found the application was made without unreasonable delay, that the applicant demonstrated substantial loss through her undisputed 23-year occupation and reasonable fear of eviction and alienation, and that the memorandum of appeal raised triable issues. Security was imposed by court order.

Reasoning

The court applied Order 42 rule 6(2) and the Butt v Rent Restriction Tribunal guidelines. Judgment was delivered on 25.07.2023 and the application filed 19.09.2023, a delay of about one month and 25 days held not unreasonable. The applicant's undisputed residence of 23 years and fear of eviction and adverse dealings constituted substantial loss. Although the respondent claimed the decree had been executed, he tendered no evidence. The court exercised its discretion to direct security of Kshs. 50,000 despite the applicant not having volunteered it.

p. 4

Legal principles established

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  • The power to grant stay of execution is discretionary and should be exercised so as not to render an appeal nugatory.
  • An applicant for stay must demonstrate substantial loss, absence of unreasonable delay, and readiness to give security.

Court orders

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  1. 1.Stay of the judgment delivered on 25.07.2023 in Embu Chief Magistrate Court MC ELC No 132 of 2018 pending hearing and determination of the appeal
  2. 2.Applicant to deposit in court Kshs. 50,000 as security for costs within 60 days from the date of the ruling, failing which the order of stay will automatically lapse
  3. 3.Applicant to compile, file and serve a record of appeal within 60 days from the date of the ruling
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Environment and Land Court ActSections 3 and 13(7)(a)
  • Civil Procedure RulesOrder 42 rule 6(1) & (2)
  • Civil Procedure RulesOrder 51 Rule 1 & 3

Cases cited (7)

  • RWW v EKW
    (2019) eKLR
  • Absalom Dova v Tarbo Transporters
    (2013) eKLR
  • Mugenyi & Co. Advocates v National Insurance Corporation
    Civil Appeal No 13 of 1984
  • James Wangalwa & another v Agnes Naliaka Cheseto
    (2012) eKLR
  • Hamisi Juma Mbaya v Amakecho Mbaya
    (2018) eKLR
  • Butt v Rent Restriction Tribunal
    (1982) KLR 417
  • Francis K. Chabari & another v Mwarania Gaichura Kairubi
    [2022] eKLR
On appeal from
Embu Chief Magistrate Court
MC ELC No 132 of 2018
Jurisdiction invoked
Sections 3 and 13(7)(a) of the Environment and Land Court Act; Order 42 rule 6(1) & (2) and Order 51 Rule 1 & 3 of the Civil Procedure Rules

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, "Njeru v Kinyua (Environment and Land Appeal E015 of 2023) [2024] KEELC 5141 (KLR)", Case Analysis (2024). Notice of Motion dated 28.08.2023 (arising from Embu Chief Magistrate Court MC ELC No 132 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5141/eng@2024-06-11

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