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ELCDismissedNot stated in the judgment· [2024] KEELC 6280 (KLR)

Kimbio v Kimbio (Environment and Land Appeal E010 of 2024) (Environment and Land) [2024] KEELC 6280 (KLR)

Environment and Land Court
27 September 2024
EWE. K. Wabwoto
1,269 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a landowner's bid to pause execution of a judgment, confirming that filing an appeal alone does not stop enforcement of a decree.

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 Voi (E. K. Wabwoto, J) on a Notice of Motion dated 24th July 2024 in which the Applicant sought a stay of execution pending appeal of a judgment delivered on 19th June 2024, in which the Respondent was declared absolute owner of Voi/Ndara 'A'/4389 measuring 21.23Ha and the Applicant restrained from interfering with it. The Respondent opposed the application, contending the stay threshold had not been met. Counsel (Mr. Mwazighe for the Applicant and Mr. Motuka for the Respondent) made oral submissions on 24th September 2024. The court identified the settled four-pronged test: just cause, substantial loss, security for due performance of the decree, and absence of unreasonable delay, grounded in Order 42 Rule 6(1) and (2) of the Civil Procedure Rules and reinforced by RWW v EKW, James Wangalwa & Anor v Agnes Naliaka and Machira v East African Standard (No 2). The court found that the Applicant had not demonstrated substantial loss, residence on the suit property, or any threat of execution, nor had he offered security; the mere filing of a memorandum of appeal confers no automatic stay, and a successful litigant should not be deprived of the fruits of judgment save in exceptional circumstances. The court concluded the Applicant had not satisfied the principles for stay and dismissed the motion in its entirety with costs assessed at Kshs 15,000.00, payable by the Applicant.

Key legal issues

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01

Whether the Applicant met the threshold for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules

Holding

The Applicant failed to satisfy the principles; the application was dismissed

Reasoning

The court held that stay pending appeal is a discretionary remedy fettered by four conditions: just cause, substantial loss, security for due performance of the decree, and no unreasonable delay. The Applicant did not demonstrate substantial loss, residence in the suit property, or any threat of execution of the decree. He also did not express willingness to offer security, and the Respondent as successful litigant should not be deprived of the fruits of his judgment.

p. 3

Legal principles established

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  • An appeal does not operate as an automatic stay of execution; the Applicant must satisfy the four conditions - just cause, substantial loss, security, and no unreasonable delay
  • The mere filing of a memorandum of appeal does not entitle a party to a stay of execution

Court orders

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  1. 1.The Motion dated 24th July 2024 is dismissed in its entirety with costs
  2. 2.The Applicant shall pay the costs of the application assessed at Kshs 15,000.00

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (3)

  • RWW v EKW
    [2019] eKLR
  • James Wangalwa & Anor v Agnes Naliaka
    [2012]
  • Machira T/A Machira & Co Advocates v. East African Standard (No 2)
    [2002] KLR 63
On appeal from
trial court (not named in the judgment)
Jurisdiction invoked
Order 42 Rule 6(1) and (2) 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, "Kimbio v Kimbio (Environment and Land Appeal E010 of 2024)  (Environment and Land) [2024] KEELC 6280 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6280/eng@2024-09-27

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