Maina (Suing on His Behalf and on Behalf of 33 others) v Nzuki & 2 others (Environment & Land Case 18 of 2008) [2024] KEELC 6424 (KLR)

Environment and Land Court

2 October 2024

ANA. NYUKURI

1,754 words in judgment

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The bottom line

The Environment and Land Court in Machakos dismissed a stay of execution because the applicants delayed over two months, showed no substantial loss, and offered no security.

What this practically means

Executive summary

This was a notice of motion dated 6th July 2023 by the 1st and 2nd defendants seeking stay of execution of a judgment delivered on 26th April 2023 pending an intended appeal, following a notice of appeal filed on 8th May 2023. The applicants, administrators of the estate of Raphael Kakula Nzuki, argued that the suit property belonged to the estate, that execution would render the appeal nugatory, and that the property might be subdivided and sold. The plaintiff opposed, stating the plaintiffs had been in possession for over 20 years, had constructed on the property, and that titles could be revoked if the appeal succeeded. The 3rd defendant also opposed, noting it had complied with the judgment by depositing Kshs. 1,752,988 in court and that the applicants had neither offered security nor explained the delay in filing. The court identified a single issue: whether the applicants deserved stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. Applying James Wangalawa & Another v. Agnes Naliaka Chesoto, the court held that substantial loss was not demonstrated since the judgment had found the property did not belong to the estate and no evidence of subdivision was presented. The application was also held to have been filed after unreasonable delay of over two months without explanation, and the applicants had not exhibited filing of the appeal within 60 days under Rule 84 of the Court of Appeal Rules. The application was dismissed with costs to the respondents.

Key legal issues

Whether the applicants demonstrated substantial loss if execution proceeds

Holding

Substantial loss not demonstrated; the judgment found the suit property does not belong to the estate of Raphael Kakula Nzuki and no evidence of intended subdivision was presented

Reasoning

The applicants claimed the property belongs to the deceased's estate and might be subdivided and sold. The court noted its judgment had already found the property did not belong to the estate, making the administrators' claim of inability to perform duties baseless. No evidence of subdivision was adduced, and the sale of the property by the deceased was not contested.

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Whether the application was filed without unreasonable delay

Holding

The application filed over two months after judgment was delayed without justification

Reasoning

Judgment was delivered on 26th April 2023 and notice of appeal filed on 8th May 2023, but the stay application was only filed on 6th July 2023, over two months later, with no explanation. The applicants also failed to exhibit filing of the appeal within 60 days as required under Rule 84 of the Court of Appeal Rules.

p. 4

Legal principles established

To obtain stay pending appeal, the applicant must demonstrate substantial loss, file the application without unreasonable delay, and show willingness to provide security

Court orders

1.Application dated 6th July 2023 dismissed with costs to the respondents

Authorities

Legislation

Civil Procedure RulesOrder 42 Rule 6
Court of Appeal RulesRule 84

Cases cited (1)

James Wangalawa & Another v. Agnes Naliaka Chesoto
[2012] eKLR

Jurisdiction invoked: Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Maina (Suing on His Behalf and on Behalf of 33 others) v Nzuki & 2 others (Environment & Land Case 18 of 2008) [2024] KEELC 6424 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6424/eng@2024-10-02

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