Kageni v Wathigo (Environment and Land Appeal E033 of 2024) [2024] KEELC 5655 (KLR)
The bottom line
#A Thika court paused eviction proceedings so a land dispute appeal can be heard, but warned that fearing execution alone isn't enough to win a stay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant demonstrated substantial loss under Order 42 rule 6(2)(a)
The court found that substantial loss was not demonstrated, since execution is a lawful process that does not of itself constitute substantial loss.
The court reiterated that execution is a lawful process and does not by itself amount to substantial loss, citing James Wangalwa & Another v Agnes Naliaka Cheseto. The Applicant's apprehension of eviction and removal of cautions was held insufficient: in the court's view he had not demonstrated the substantial loss he stood to suffer if stay were not granted.
Whether the Application was filed without unreasonable delay
The application, filed less than a week after delivery of the impugned judgment, was not inordinately delayed.
The judgment was delivered on 27/3/2024 and the application dated 3/4/2024, less than a week later. The court held this delay was not inordinate, satisfying that limb of Order 42 rule 6(2).
Whether stay should nonetheless be granted
The court allowed the application purely in the interests of justice despite finding substantial loss undemonstrated.
Notwithstanding its finding on substantial loss, the court invoked its discretion and the overriding interests of justice, implicitly guided by the Butt v Rent Restriction Tribunal principles that a stay should not be refused where the appeal would otherwise be rendered nugatory.
Legal principles established
#- Execution on its own does not amount to substantial loss because it is a lawful process.
- The principles of arguability of appeal and whether the appeal will be rendered nugatory apply to appeals to the Court of Appeal, not to a first appellate court considering Order 42 Rule 6(2).
Court orders
#- 1.Stay of execution of the judgment delivered in Kiambu CMCC ELC Case No. 60 of 2022 delivered on 27/3/2024, granted purely in the interests of justice
- 2.Costs in the cause
- On appeal from
- Principal Magistrates' Court at Kiambu
- Kiambu CMCC ELC Case No. 60 of 2022
- Jurisdiction invoked
- Order 42 Rule 6 and Order 22 Rule 22, Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A and 1B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kageni v Wathigo (Environment and Land Appeal E033 of 2024) [2024] KEELC 5655 (KLR)", Case Analysis (2024). Not stated in the judgment (Miscellaneous Application dated 3/4/2024 arising from Kiambu CMCC ELC Case No. 60 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5655/eng@2024-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.