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ELCDismissedNot stated in judgment (ELC, Machakos)· [2024] KEELC 5557 (KLR)

Makenzi & another v Mutua & another (Environment & Land Case E23 of 2020) [2024] KEELC 5557 (KLR)

Environment and Land Court
29 July 2024
COChristine Ochieng
1,409 words in judgment
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The bottom line

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A Machakos court refused to pause enforcement of a family land judgment because the applicants showed no real loss and applied in the wrong forum.

What this practically means

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Executive summary

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The Defendants/Applicants in this land matter moved the Environment and Land Court at Machakos by Notice of Motion dated 9th February 2024, under Order 40 Rules 1-4 and Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking stay of execution of the court's judgment of 31st January 2024 pending appeal, plus an injunction restraining the Plaintiffs from dealing with Mavoko Town Block 3/3523, 3/2640 and Commercial Plots 161 and 87. They argued they had filed a Notice of Appeal and a substantive appeal (No E234 of 2024), that there was no inordinate delay, and that they stood to lose over 60 acres of prime land and two commercial plots - substantial loss. The Plaintiffs opposed through the 2nd Plaintiff's affidavit, contending the application aimed to deny them the fruits of a judgment directing sharing of family properties held in trust, and that the Defendants had shown no substantial loss. The court framed one issue: whether stay pending appeal should be granted. Applying Order 42 Rule 6(2) and Butt v Rent Restriction Tribunal, the court held that the applicants had not demonstrated substantial loss, noting the impugned judgment merely referred distribution of the deceased's estate to the pending Machakos High Court succession cause. It further observed that having lodged a substantive appeal in the Court of Appeal, the application should have been filed there. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether stay of execution pending appeal should be granted

Holding

No; the Defendants failed to meet the threshold under Order 42 Rule 6, showing neither substantial loss nor that the application was properly before this court

Reasoning

The court noted the judgment merely referred distribution of the estate to the Machakos High Court where the succession cause is pending, so no substantial loss was shown. Having lodged a substantive appeal (No E234 of 2024) in the Court of Appeal, the stay application should have been made there. The application was therefore unmerited and was dismissed.

p. 3

Legal principles established

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  • An application for stay of execution should be filed in the Court of Appeal where a substantive appeal has already been lodged there
  • An applicant for stay must demonstrate substantial loss and satisfy the conditions of Order 42 Rule 6 of the Civil Procedure Rules

Court orders

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  1. 1.The Defendants' Notice of Motion Application dated 9th February 2024 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 40 Rules 1, 2, 3 and 4
  • Civil Procedure ActSections 1A, 1B and 3A
  • Court of Appeal Rules (Appellate Jurisdiction Act)Rule 5(2)(b)

Cases cited (3)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • MFI Document Solutions Ltd v Paretto Printing Works Limited
    (2021) eKLR
  • Jaber Mohson Ali & another v Priscilla Buit & another
    Eldoret ELC No 20 of 2012
Jurisdiction invoked
Order 40 Rules 1, 2, 3 and 4 and Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Makenzi & another v Mutua & another (Environment & Land Case E23 of 2020) [2024] KEELC 5557 (KLR)", Case Analysis (2024). Not stated in judgment (ELC, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5557/eng@2024-07-29

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