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ELCAllowedNot stated on the face of the ruling (ruling on Notice of Motion dated 6th October 2023)· [2024] KEELC 5683 (KLR)

Karungu v Masira & another (Environment & Land Case 540 of 2016) [2024] KEELC 5683 (KLR)

Environment and Land Court
25 July 2024
1,905 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nakuru halted eviction proceedings pending appeal, but only because the landowner promised Kshs. 500,000 as security within 30 days.

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 Nakuru (M. A. Odeny, J) on a Notice of Motion dated 6th October 2023 by the 1st Defendant/Applicant seeking stay of execution of the judgment and decree delivered by Hon. Justice Njoroge Francis Mwangi on 22nd September 2023 pending an intended appeal. The applicant deponed that he had built a matrimonial home on the suit property where he resides with his family and that the appeal would be rendered nugatory without a stay. The Plaintiff/Respondent opposed, stating she suffered irreparable loss from the defendants' continued presence, which had caused insecurity at the school she runs, and that the defendants refused to satisfy the decree. The 2nd Defendant supported the application, noting the parties' mother and daughter-in-law relationship. The court framed one issue: whether the threshold under Order 42 Rule 6 was met. It found the application filed without undue delay (filed 6th October 2023, judgment delivered 22nd September 2023), held that substantial loss was the cornerstone of stay applications and that the applicant's substantial developments on the land, coupled with the need to preserve the substratum in land matters, satisfied this limb, and noted the applicant's willingness to offer security. The court granted a conditional stay of execution pending appeal, conditioned on the applicant depositing Kshs. 500,000 in a joint interest-earning account of the parties' advocates within 30 days, failing which the order lapses, with costs of the application to abide the appeal.

Key legal issues

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01

Whether the application for stay of execution met the threshold under Order 42 Rule 6

Holding

Yes - the application was filed without undue delay, substantial loss was shown by the applicant's residence and developments on the suit property, and the applicant offered security

Reasoning

The court applied Order 42 Rule 6: the judgment was delivered on 22nd September 2023 and the application filed on 6th October 2023, so delay was not unreasonable. The applicant had built a matrimonial home on the land, and in land matters stay preserves the substratum of the case pending appeal. The applicant expressed willingness to offer security, and the court conditioned the stay on a deposit of Kshs. 500,000.

p. 4
02

The purpose of security under Order 42 Rule 6

Holding

Security guarantees due performance of the decree ultimately binding on the applicant; it is not a punishment

Reasoning

Relying on Arun C. Sharma v Ashana Raikundalia as adopted in Ena Investment Limited v Benard Ochau Mose, the court reasoned that civil process treats the judgment like a debt, making the applicant a judgment debtor, and security under Order 42 rule 6 must serve the purpose of guaranteeing due performance of the decree.

p. 4

Legal principles established

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  • Proof of substantial loss is the cornerstone of an application for stay of execution and must be proved, not merely asserted
  • A mere mention of imminent eviction under a decree issued after a full hearing is not proof of substantial loss

Court orders

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  1. 1.Stay of execution of the judgment and decree delivered on 22nd September 2023 and all consequential orders granted pending appeal on condition that the Applicant deposits Kshs. 500,000 in a joint interest-earning account of the Advocates for the Plaintiff and the 1st Defendant within 30 days, failing which the order lapses
  2. 2.Costs of the application to abide by the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesSection 3A
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder XLI Rule 4
  • Civil Procedure ActSection 1A(2)

Cases cited (12)

  • Samvir Trustee Limited v Guardian Bank Limited (Under Receivership)
    [2007] eKLR
  • Charles Ngigi Ndungu v Joseph Kimani Gatheca & 2 others
    [2020] eKLR
  • Michael Mugo Ireri v Nelson Ntiga Ikou & another
    [2017] eKLR
  • Mukuma v Abuoga
    [1988] KLR 645
  • Consolidated Marine v Nampijja & Another
    Civil App No 93 of 1989 (Nairobi)
  • James Peter Kinyungu Mbadi v Ngumbao Goda Dzombo & 72 others
    [2021] eKLR
  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • Kenya Shell Limited v Kibiru
    [1986] KLR 410
  • Kabugua v Mwatata & another
    (Civil Appeal 1 of 2021) [2023] KEELC 15715 (KLR) (20 February 2023)
  • RWW v EKW
    (2019) eKLR
  • Ena Investment Limited v Benard Ochau Mose & 2 others
    [2022] eKLR
  • Arun C. Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others
    [2014] eKLR
Jurisdiction invoked
Order 42 Rule 6 and Section 3A of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Karungu v Masira & another (Environment & Land Case 540 of 2016) [2024] KEELC 5683 (KLR)", Case Analysis (2024). Not stated on the face of the ruling (ruling on Notice of Motion dated 6th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5683/eng@2024-07-25

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