Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEldoret CMCC ELD No. 73 of 2020 (Appeal) - Notice of Motion dated 18th April 2024· [2024] KEELC 6752 (KLR)

Bwire & another v Siwa (Environment and Land Appeal E015 of 2024) [2024] KEELC 6752 (KLR)

Environment and Land Court
15 October 2024
EOE. O. OBAGA
2,802 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Eldoret disposes of the Appellants' Notice of Motion dated 18th April 2024 seeking stay of execution of the decree in Eldoret CMCC ELD No. 73 of 2020, in which judgment delivered on 21st December 2023 ordered them to transfer 28 acres of Land Parcel No. Uasin Gishu/Moiben/3 to the Respondent. The appeal challenged the dismissal, on 11th April 2024, of their application to set aside that judgment. The Appellants argued they would suffer substantial loss as the Respondent had accessed and ploughed the land, asserted the appeal had high chances of success, and offered to furnish security, claiming the title deed was lost. The Respondent opposed, contending the appeal had no merit, the application was brought five months after judgment with no appeal lodged against the judgment itself, and that the Appellants had refused his proposal to deposit the title deed in court, offering only a police abstract; he alternatively proposed security of KShs. 14,000,000/-. The court framed a single issue: whether the Appellants were entitled to stay of execution pending appeal under Order 42 rule 6. On substantial loss, the Appellants failed to specify the loss they would suffer if stay was not granted. On delay, the court found none, as they had promptly pursued setting aside the judgment and filed the motion eight days after the ruling. On security, depositing the title would have been the most sufficient security in a non-money decree, and the Appellants' rejection of that proposal, without proof of loss or alternative security, defeated the condition. Since the three conditions are conjunctive, the application was dismissed with costs to the Respondent.

Key legal issues

#
01

Substantial loss

Holding

Not established; the Appellants did not specify what substantial loss they would suffer

Reasoning

The Appellants asserted they would suffer substantial loss if the appeal succeeded, but the condition requires loss if stay is not granted pending the appeal. No indication was given of what that loss would exactly be, so the first condition failed.

p. 4
02

Unreasonable delay

Holding

Delay of about 4 months was not inordinate because the Appellants promptly pursued an application to set aside the judgment and filed this motion 8 days after that ruling was dismissed

Reasoning

Although the application was filed about 4 months after judgment, the Appellants had immediately sought to set the judgment aside and moved promptly once that application was dismissed on 11th April 2024. The court found the delay excusable.

p. 4
03

Security for due performance of the decree

Holding

Not satisfied; the Appellants rejected the proposal to deposit the title deed in court, offering only a police abstract for the alleged loss of title and no alternative security

Reasoning

Since this is not a money decree, depositing the title would have been the most sufficient security. The Appellants' refusal to deposit the title, supported only by a police abstract and with no application for replacement title or alternative security produced, cast doubt on their willingness and defeated the third condition.

p. 5

Legal principles established

#
  • The three conditions for stay of execution pending appeal under Order 42 rule 6 - substantial loss, absence of unreasonable delay, and security - must be met simultaneously, being conjunctive and not disjunctive
  • Execution being put in motion is by itself not substantial loss; the applicant must show the execution will negate the core of the appeal

Court orders

#
  1. 1.The Appellants' Notice of Motion dated 18th April 2024 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Land Registration ActSection 34
  • Land Registration ActSection 33

Cases cited (7)

  • Nicholas Stephen Okaka & Another vs Alfred Waga Wesonga
    (2022) eKLR
  • James Wangalwa vs Anges Naliaka Cheseto
    (2012) eKLR
  • Mbola (Appealing through his recognised agent John Ndambuki Kitenge) vs Masila
    (2024) KEELC 1634 (KLR)
  • Charles Kariuki Njuri vs Francis Kimaru Rwara (suing as Administrator of the Estate of Rwara Kimaru alias Benson Rwara Kimaru-Deceased)
    (2020) eKLR
  • Mwangi (suing as the Administrator of the Estate of Joseph Mwangi Gatiari) vs Mwangi (sued as the administrator of the Estate of Susan Njeri Mwangi)
    (2023) eKLR
  • Arun C. Sharma vs Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 others
    (2014) eKLR
  • Absalom Dova vs Tarbo Transporters
    (2013) eKLR
On appeal from
Chief Magistrate's Court, Eldoret
Eldoret CMCC ELD No. 73 of 2020
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bwire & another v Siwa (Environment and Land Appeal E015 of 2024) [2024] KEELC 6752 (KLR)", Case Analysis (2024). Eldoret CMCC ELD No. 73 of 2020 (Appeal) - Notice of Motion dated 18th April 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6752/eng@2024-10-15

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