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ELCDismissedNot stated in the judgment· [2024] KEELC 7030 (KLR)

Kosiom v Matura (Environment and Land Appeal E005 of 2024) [2024] KEELC 7030 (KLR)

Environment and Land Court (the judgment is signed 'L. KOMINGOI, JUDGE' at Kajiado)
24 October 2024
LKL. Komingoi
899 words in judgment
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The bottom line

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A Kajiado court refused to pause execution of a land judgment because the appellant couldn't show she would suffer substantial loss.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 26th February 2024 brought by the appellant, Beatrice Tumuti Kosiom, under Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, seeking a temporary stay of execution of a judgment delivered on 15th February 2024 pending the hearing and determination of her appeal, with costs of the application. The application was supported by her affidavit and opposed by the respondent, Solomon Kuntai Ole Matura, through a replying affidavit sworn on 19th March 2024. By consent, the motion was canvassed by written submissions. The appellant, relying on Order 42 Rule 6 and several authorities, argued the application was filed without undue delay, that substantial loss would ensue because the respondent was a person of straw unable to compensate her if the appeal succeeded, and that she was willing to furnish security. The respondent maintained the governing law was the pre-amendment Section 3(3) of the Law of Contract Act recognising part performance, that he was in occupation of nine acres with a permanent matrimonial home, and that the appellant had not countered his occupation. L. Komingoi J found the appellant had failed to demonstrate substantial loss, the prospects of success of the appeal, or the respondent's inability to compensate her. Noting the respondent's undisputed possession of the suit property, the court dismissed the application and directed that costs abide the outcome of the appeal.

Key legal issues

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01

Whether the appellant satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules

Holding

The application failed because the appellant did not demonstrate substantial loss, nor that the appeal had high chances of success or that the respondent could not compensate her

Reasoning

The court applied Order 42 Rule 6 as interpreted in RWW v EKW, holding that stay preserves the subject matter while protecting the successful litigant's right to the fruits of judgment. On the facts, the respondent was in possession of the suit property, having purchased it and constructed a home thereon. The appellant adduced nothing to show she would suffer substantial loss, that the appeal was likely to succeed, or that the respondent was unable to compensate her if the appeal succeeded. The application was accordingly found without merit.

p. 3

Legal principles established

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  • The purpose of a stay of execution pending appeal is to preserve the subject matter of the dispute so the appeal, if successful, is not rendered nugatory, while ensuring the successful litigant is not deprived of the fruits of the judgment and no party suffers prejudice not compensable by costs

Court orders

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  1. 1.The Notice of Motion dated 26th February 2024 seeking stay of execution pending appeal is dismissed
  2. 2.Costs to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A and 63(e)
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Law of Contract ActSection 3(3) (pre-amendment law as applied to the agreement of 25th January 2003)

Cases cited (5)

  • James Wangalwa & Another Vs. Agnes Naliaka Cheseto
    (2012) eKLR
  • COI & Another Vs. Chief Magistrate Ukunda Law Courts & 4 Others
    (2018) eKLR
  • RWW Vs. EKW
    (2019) eKLR
  • Vishram Ravji Halai Vs. Thornton & Turpin
    (1990) KLR 365
  • Nairobi Permanent Markets Society Vs. Salim Enterprises & Others
    (1995 – 1998) 1 EA 232
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; Order 42 Rule 6 of the Civil Procedure Rules, 2010

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, "Kosiom v Matura (Environment and Land Appeal E005 of 2024) [2024] KEELC 7030 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7030/eng@2024-10-24

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