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ELCDismissedEnvironment and Land Appeal E003 of 2024· [2024] KEELC 5606 (KLR)

Kiruthu v Mutea (Environment and Land Appeal E003 of 2024) [2024] KEELC 5606 (KLR)

Environment and Land Court
31 July 2024
1,675 words in judgment
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The bottom line

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The court refused to pause execution of a land judgment because the applicant waited five months, offered weak evidence, and proposed token security.

What this practically means

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Executive summary

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The applicant, Mary Wakarima Kiruthu, sought a stay of execution of a judgment/decree delivered on 30.1.2024 by the lower court, pending her appeal, on the ground that her portion measuring 5 by 7 feet, comprising a toilet and shower room serving her hotel, would be demolished. The respondent, Rael Gatabira Mutea, opposed the application, asserting that after judgment the applicant had been granted a three-month stay to vacate or negotiate a lease; that the suit premises had been leased to third parties since 2013 and generated rental income; and that the applicant had built a toilet on the premises only after judgment to disguise the land and frustrate execution. The respondent also raised a preliminary objection on res judicata and jurisdiction, noting a similar stay application dismissed on 11.6.2024. The court set out the four conditions for a stay: no unreasonable delay, substantial loss, security, and the interest of justice. It found a five-month delay unexplained; substantial loss not proved with cogent evidence, as the photographs lacked provenance and no certificate of electronic evidence was attached; the offered security of Kshs.10,000 paltry; and rental income loss quantifiable and refundable. On the preliminary objection, the court held that Order 42 Rule 6(1) permits a second stay application even where one was refused by the court appealed from, so the application was not barred, but on the merits the applicant failed all the requisite conditions. The application was dismissed, the court holding it was not in the interest of justice to grant the orders sought.

Key legal issues

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01

Unreasonable delay in filing the stay application

Holding

A five-month delay between the judgment (30.1.2024) and the application (13.6.2024) was unexplained

Reasoning

The court held that the law sets no minimum or maximum delay, as it depends on the circumstances of each case, but the delay must be explained. The applicant gave no reason for waiting five months after judgment before moving to this court, failing the first condition for stay.

p. 2
02

Substantial loss

Holding

Not proved; photographs were of doubtful authenticity and no certificate of electronic evidence was attached

Reasoning

The applicant claimed her hotel would become inhabitable without a toilet, but no evidential material substantiated that the suit land was part of the hotel business. The photographs lacked details of when, where and by whom they were taken, and no certificate of electronic evidence was attached. Rental income loss is quantifiable and refundable.

p. 2
03

Res judicata / preliminary objection

Holding

Res judicata does not bar a second stay application under Order 42 Rule 6(1), but the application still fails on the substantive conditions

Reasoning

The respondent objected that the application was res judicata given the dismissed application of 2.2.2024. The court found Order 42 Rule 6(1) permits a second stay application even where refused by the court appealed from, citing authority, but nonetheless dismissed the application on its merits for failure to satisfy the stay conditions.

p. 3
04

Security for due realization of the decree

Holding

The applicant's offer of Kshs.10,000 was inadequate (a 'paltry sum')

Reasoning

One of the conditions for stay is that the applicant offers security for the due realization of the decree should the appeal fail. The applicant offered only Kshs.10,000, which the court characterized as paltry, reinforcing its conclusion that the requisite conditions were not met.

p. 2

Legal principles established

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  • A party seeking stay of execution pending appeal must show: filing without unreasonable delay, substantial loss, security for due realization of the decree, and that the orders are in the interest of justice
  • Substantial loss is the cornerstone of a stay and must be proved through cogent and tangible evidence; imminence of execution is not enough
  • Under Order 42 Rule 6(1) a party may file a second application for stay even if refused by the court appealed from

Court orders

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  1. 1.The application for stay of execution pending appeal is dismissed
  2. 2.In the interest of justice, the orders sought are declined as the applicant failed to meet the requisite conditions of stay

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesSection 7 (res judicata provision quoted)
  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Public Health ActNot specified

Cases cited (12)

  • Kenya Railways Corporation vs Harjot Singh Dhanjal
    (2021) eKLR
  • Andrew Kiplagat Chemaringo vs Paul K. Kibet
    (2018) eKLR
  • James Wangalwa vs Agnes Naliaka Cheseto
    (2012) eKLR
  • Kenya Shell Ltd vs Kobiur & another
    (1986) KLR 2100
  • NIC Ltd vs. Aquinas Francis Wasike & another
    (2006) eKLR
  • Cyrus Ngari Githua vs Sakayo Ongati and others
    ELC E020 of 2020 (20204) KEELC 1687 KLR (20th March 20240 (Ruling)
  • Karia vs Kesha
    ELC E006 of 2023 (2024) KEELC 1184 (KLR) 6th March 2024 (ruling)
  • Uhuru Highway Development Limited vs Central Bank of Kenya
    (1996) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd
    (1969) EA 696
  • Oraro vs Mbaja
    (2005) 1 KLR 141
  • Peter Maina vs Francis Monyo Kimere
    (2017) eKLR
  • Girbux Singh Suiri and another vs Royal Credit Ltd
    Civil Appeal NAI 281 of 1995
Jurisdiction invoked
Order 42 Rule 6(1) of the Civil Procedure Rules (stay of execution pending 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, "Kiruthu v Mutea (Environment and Land Appeal E003 of 2024) [2024] KEELC 5606 (KLR)", Case Analysis (2024). Environment and Land Appeal E003 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5606/eng@2024-07-31

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