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ELCPartially AllowedELC PMCC No E002 of 2021 (Appeal), Githongo Law Courts· [2024] KEELC 6452 (KLR)

M’Ngatunyi v Manyara (Environment and Land Appeal E043 of 2024) [2024] KEELC 6452 (KLR)

Environment and Land Court
3 October 2024
CYC.K Yano
2,081 words in judgment
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The bottom line

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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 Meru (C.K Yano, ELC Judge) on a notice of motion dated 1st July 2024 by Cosmas Mbae M'Ngatunyi, the appellant in an appeal against the judgment and decree of the Githongo Law Courts in ELC PMCC No E002 of 2021 delivered on 31st May 2024, which allowed the respondent (as plaintiff) to evict the appellant and remove his developments on LR Kiamuri 'A'/3121 and 3122. The applicant sought stay of execution pending appeal, or alternatively an injunction restraining eviction or destruction of his properties, invoking Order 42 Rules 6 and 7 of the Civil Procedure Rules and Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act. The respondent opposed, asserting registered title, denying the applicant's alleged 20-year occupation, contending the applicant's presence was mere trespass limited to harvesting mangoes and growing subsistence crops, and arguing that no security for costs had been offered and that the application was premature. Neither party filed submissions. The court framed two issues: stay of execution and the alternative injunction. Applying Order 42 Rule 6(2) and the authorities on substantial loss (Antoine Ndiaye, James Wangalwa, RWW v EKW), the court found the application filed without unreasonable delay (about one month), that eviction and removal of the applicant's property would cause irreparable loss and render the appeal nugatory, and that the appeal raised triable issues constituting sufficient cause. The application was allowed in terms of prayer 3 (stay of execution pending the appeal); the alternative injunction was not granted. Costs of the application were ordered to abide the outcome of the appeal.

Key legal issues

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Stay of execution pending appeal under Order 42 Rule 6(2)

Holding

The application satisfied the three conditions: it was filed about one month after judgment (no unreasonable delay), the applicant demonstrated substantial loss since eviction and destruction of his property would render the appeal nugatory, and the appeal raised triable issues constituting sufficient cause.

Reasoning

The court applied the tripartite test in Order 42 Rule 6(2). Delay of about one month from delivery of judgment on 31st May 2024 to filing on 1st July 2024 was not unreasonable. On substantial loss, the court accepted that eviction and removal of the applicant's developments would cause irreparable loss and render the appeal nugatory. The appeal was found to raise triable issues, amounting to sufficient cause, and the application was allowed in terms of prayer 3.

p. 4

Legal principles established

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  • An application for stay of execution pending appeal must satisfy the conditions in Order 42 Rule 6(2): substantial loss, no unreasonable delay, and security for due performance of the decree.
  • The purpose of a stay of execution pending appeal is to preserve the subject matter so that a successful appeal is not rendered nugatory, while balancing the appellant's rights against the respondent's enjoyment of the judgment.

Court orders

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  1. 1.The application dated 1st July, 2024 is allowed in terms of prayer 3 thereof (stay of execution of the judgment and decree in ELC PMCC No E002 of 2021 pending the hearing and determination of the appeal)
  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(1) and (2)
  • Civil Procedure RulesOrder 42 Rule 7
  • Civil Procedure ActSections 1A, 1B, 3, 3A and 63

Cases cited (3)

  • Antoine Ndiaye v African Virtual University
    [2015] eKLR
  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
  • RWW v EKW
    [2019] eKLR
On appeal from
Githongo Law Courts (Magistrates' Court)
ELC PMCC No E002 of 2021
Jurisdiction invoked
Order 42 Rules 6 and 7 of the Civil Procedure Rules and Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act

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, "M’Ngatunyi v Manyara (Environment and Land Appeal E043 of 2024) [2024] KEELC 6452 (KLR)", Case Analysis (2024). ELC PMCC No E002 of 2021 (Appeal), Githongo Law Courts. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6452/eng@2024-10-03

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