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ELCDismissedNyahururu ELC Appeal (stay application dated 05/07/2024) in respect of Nyahururu CM ELC Case No. E037 of 2023· [2024] KEELC 6426 (KLR)

Muriithi & 2 others (Suing on Their Own Behalf and on Behalf of Oljabet Jua Kali Artisan Community Based Organisation (CBO) as the Chairman, Secretary & Treasurer) v Gitonga & 2 others (Sued on Their Own Behalf and on Behalf of Marmanet Jua Kali Society as the Chairman, Secretary & Treasurer) (Environment and Land Appeal E010 of 2024) [2024] KEELC 6426 (KLR)

Environment and Land Court
2 October 2024
KBK. BOR
1,216 words in judgment
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The bottom line

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The Environment and Land Court refused to pause an order evicting Marmanet Jua Kali artisans because they proved no harm and offered no security.

What this practically means

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Executive summary

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The Appellant, a Community Based Organization of Jua Kali artisans, applied by notice of motion dated 05/07/2024 for stay of execution of the ruling and orders of 06/06/2024 in Nyahururu CM ELC Case No. E037 of 2023, by which the Learned Magistrate restrained the Appellants from operating within the suit premises and effectively ordered them to vacate. The Appellant, through its Secretary Wilyson Gakuruh, contended that the suit property was public land set aside for all Jua Kali artisans under the Micro and Small Enterprises Authority, that the buildings were developed by the Government, and that the Respondents had disconnected the members' electricity and blocked access to meter boxes, paralyzing some 30 artisans' businesses. The Respondent, through Chairman David Waikwa Gitonga, asserted ownership via a certificate of lease, membership since 1992, and development of the premises with county support, and accused the Appellants of registering the CBO in 2022, displacing its members and tampering with meters. The court framed a single issue: whether stay should issue. Applying Order 42 Rule 6 of the Civil Procedure Rules, the court found the application was made without unreasonable delay but that the Appellants had not shown substantial loss, offered no security, and failed to annex the ruling sought to be stayed. The application was dismissed, with costs of the application to abide the outcome of the appeal.

Key legal issues

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Whether stay of execution of the trial court's orders of 06/06/2024 should be granted pending appeal

Holding

Stay was refused because the appellants did not establish substantial loss and did not offer security, and failed to annex the ruling sought to be stayed

Reasoning

The court restated the three conditions in Order 42 Rule 6: substantial loss, application without unreasonable delay, and security for due performance of the decree. Although the application was brought within about a month of the ruling, the appellants did not demonstrate that substantial loss would result, offered no security, and did not annex the ruling itself, which would have assisted the court. The court therefore declined the stay and ordered costs to abide the appeal.

p. 3

Legal principles established

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  • An applicant for stay under Order 42 Rule 6 must show substantial loss, absence of unreasonable delay, and must offer security for due performance of the decree

Court orders

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  1. 1.The court declined to grant the orders sought in the application dated 05/07/2024
  2. 2.The costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
On appeal from
Magistrate's Court, Nyahururu
CM ELC Case No. E037 of 2023
Jurisdiction invoked
Rule 6 of Order 42 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, "Muriithi & 2 others (Suing on Their Own Behalf and on Behalf of Oljabet Jua Kali Artisan Community Based Organisation (CBO) as the Chairman, Secretary & Treasurer) v Gitonga & 2 others (Sued on Their Own Behalf and on Behalf of Marmanet Jua Kali Society as the Chairman, Secretary & Treasurer) (Environment and Land Appeal E010 of 2024) [2024] KEELC 6426 (KLR)", Case Analysis (2024). Nyahururu ELC Appeal (stay application dated 05/07/2024) in respect of Nyahururu CM ELC Case No. E037 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6426/eng@2024-10-02

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