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ELCDismissedNot stated in judgment (Notice of Motion dated 9th February 2024)· [2024] KEELC 6512 (KLR)

Macharia & 2 others v Mwangi (Substituting John Mwangi Oscar Gitau) & 2 others (Environment & Land Case E007 of 2024) [2024] KEELC 6512 (KLR)

Environment and Land Court
9 October 2024
LGL. GACHERU
2,345 words in judgment
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The bottom line

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A Kenyan court refused to pause execution of a land subdivision judgment, finding no real loss where the widow would still keep her late husband's share.

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 Murang'a (L. Gacheru, J) on a Notice of Motion dated 9th February 2024 by Grace Wairimu Mwangi, widow and legal representative of the deceased defendant, seeking a stay of execution of the court's judgment of 25th January 2024 pending an intended appeal to the Court of Appeal at Nyeri (Civil Appeal No. E047/2024). In the main judgment the court had held that the deceased held land parcel LOC.20/Githuri/67 in trust for himself, the 1st and 2nd Respondents and one Patrick Macharia, and directed registration of those parties as tenants in common and sub-division within sixty days. The Applicant argued she would suffer irreparable loss as her family derives food and income from the land, relying on Githunguri v Jimba Corporation, Teachers Service Commission v KNUT and Butt v Rent Restriction Tribunal. The Respondents opposed, contending she had not shown substantial loss, security, or an arguable appeal, and relied on James Wangalwa v Agnes Naliaka Cheseto and other authorities. The court framed two issues: entitlement to the orders sought and costs. Applying the Order 42 Rule 6 principles, it held that subdivision would not occasion the Applicant substantial loss because she would retain her late husband's share, and if the appeal succeeded the entire land would revert to the estate. The application was dismissed entirely, with each party bearing its own costs given the family nature of the dispute.

Key legal issues

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01

Whether the Applicant was entitled to a stay of execution pending her intended appeal

Holding

The application was not merited; the Applicant did not demonstrate substantial loss.

Reasoning

The court applied the Order 42 Rule 6 principles as set out in James Wangalwa v Agnes Naliaka Cheseto: substantial loss, no unreasonable delay, and security. The court reasoned that upon subdivision the Applicant would retain her late husband's portion, and if the appeal succeeded the land would revert entirely to the estate; hence no substantial loss would result from execution proceeding.

p. 5
02

Who should bear the costs of the application

Holding

Each party to bear its own costs, given the dispute involves family members related through marriage.

Reasoning

Section 27 of the Civil Procedure Act ordinarily awards costs to the successful party, but the court considered it a special factor that the dispute involves family members related through marriage and departed from the ordinary position.

p. 5

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate substantial loss; where the applicant stands to retain a share of the property regardless of the appeal outcome, substantial loss is not made out.

Court orders

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  1. 1.The Notice of Motion Application dated 9th February 2024 is dismissed entirely
  2. 2.Each party to bear its own costs in respect of the instant Application

Authorities

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Legislation

  • Civil Procedure ActSections 1B, 2A, 2B, 3A, 27
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Constitution of KenyaArticles 50, 164(3)

Cases cited (13)

  • Githunguri v Jimba Corporation Limited
    [1988] KLR 838
  • Teachers Service Commission v Kenya National Union of Teachers & 3 Others
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Kingoina (Suing as the Legal Representative of Jeremiah Kingoina Obego – Deceased) v Kingiona & 3 others
    Environment & Land Court Case No. 457 of 2013 [2023] KEELC 20819 (KLR)
  • Samvir Trustee Limited v Guardian Bank Limited
    Nairobi Milimani HCCC 795 of 1997
  • Mukuma v Abuoga
    [1988] KLR 645
  • Jason Ngumba Kagu & 2 others v Intra Africa Assurance Co. limited
    [2014] eKLR
  • New Stanly Hotel Ltd v Arcade Tobbaconist
    [1980] KLR 757
  • Consolidated Marine V Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)
  • Kenya Shell Limited v Benjamin Karuga Kibiru & Ruth Wairimu Karuga
    Civil Application 97 of 1986 [1986] KECA 94 (KLR)
  • Linotype – Hell Limited v Baker
    [1992] 4 ALL ER 887
  • Sewankambo Dickson v Ziwa Abby
    HCT-00-CC MA 0178 of 2005
Jurisdiction invoked
Sections 1B, 2A, 2B and 3A 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, "Macharia & 2 others v Mwangi (Substituting John Mwangi Oscar Gitau) & 2 others (Environment & Land Case E007 of 2024) [2024] KEELC 6512 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 9th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6512/eng@2024-10-09

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