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ELCDismissedKakamega MCELC No. 998 of 2018 (appeal; Notice of Motion dated 18th December 2023)· [2024] KEELC 6036 (KLR)

Karungani v Muchai (Environment and Land Appeal E043 of 2023) [2024] KEELC 6036 (KLR)

Environment and Land Court
23 September 2024
DOD. O. Ohungo
1,005 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 Kakamega refused to pause execution of a judgment because the applicant showed no real loss from joint land registration.

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 Kakamega on a Notice of Motion dated 18th December 2023 in which the Appellant sought stay of execution of a judgment delivered by the Subordinate Court on 8th December 2023 and the resultant decree, pending the hearing and determination of an appeal. The decree under challenge directed registration of the suit property in the joint names of the Appellant and the Respondent. The Appellant contended that the subordinate court's orders posed an imminent threat to his ownership of the property and that execution would render the appeal nugatory and cause him irreparable loss. The Respondent opposed, arguing that no substantial loss had been demonstrated since, as a joint owner, she could not transact over the title without the Appellant's knowledge. Both parties filed written submissions. The court, applying Order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010, framed a single issue: whether the orders sought ought to be granted. Relying on Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu and Kenya Shell Limited v Benjamin Karuga Kibiru, the court reaffirmed that substantial loss is the cornerstone of the stay jurisdiction. It accepted that the application was filed without unreasonable delay but held that joint registration of the property did not amount to substantial loss, since proprietorship could not pass beyond the parties without their joint participation, and enforcement might actually preserve the property pending appeal. The motion was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Applicant established substantial loss to warrant stay of execution pending appeal

Holding

No substantial loss was established; the decree merely requires joint registration and the property cannot move beyond the parties without their joint knowledge and participation

Reasoning

The court accepted the application was filed without unreasonable delay and that an appeal exists, but held the threatened eventuality (joint registration) is not substantial loss. Substantial loss must be tangibly above normal loss, and the applicant is up against a successful litigant with a valid decree. Joint registration may even preserve the property pending appeal.

p. 3

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal; an application cannot succeed without demonstrating substantial loss
  • A stay applicant must demonstrate substantial loss, filing without unreasonable delay, and offer security for due performance of the decree

Court orders

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  1. 1.Notice of Motion dated 18th December 2023 dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6(1) and (2)

Cases cited (2)

  • Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu & 36 others
    [2020] eKLR
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
On appeal from
Subordinate Court (Kakamega)
Kakamega MCELC No. 998 of 2018
Jurisdiction invoked
Order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010

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, "Karungani v Muchai (Environment and Land Appeal E043 of 2023) [2024] KEELC 6036 (KLR)", Case Analysis (2024). Kakamega MCELC No. 998 of 2018 (appeal; Notice of Motion dated 18th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6036/eng@2024-09-23

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