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ELCDismissedBusia Environment and Land Court Appeal (appeal filed 30th August 2024)· [2024] KEELC 7335 (KLR)

Ademba v Nalwenge (Land Case Appeal E015 of 2024) [2024] KEELC 7335 (KLR)

Environment and Land Court
6 November 2024
2,172 words in judgment
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The bottom line

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The Environment and Land Court in Busia refused to pause execution of a ruling because the appellant never put evidence of the loss he would suffer in his sworn affidavit.

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 Busia (Boaz N. Olao, J) on a Notice of Motion dated 2nd September 2024 by Antony Onyango Ademba (appellant) seeking stay of execution of a ruling of 20th August 2024 delivered on review by Hon. P. A. Olengo SPM in Busia Chief Magistrate's Court Elc Case No 67 of 2021. In the underlying suit Kenneth Odhiambo Nalwenge had sought cancellation of titles to parcels Marachi/Bujumba/1264, 1265 and 1266 as fraudulently obtained; the suit was dismissed on 11th September 2023 without any order on costs. On review, the trial magistrate found the judgment had not dealt with the appellant's case, awarded costs to the co-defendant, ordered parcel 1266 to revert to Joseph Otieno (a non-party), and directed the respondent to file a succession cause. The appellant appealed and sought a stay under Order 42 Rule 6 of the Civil Procedure Rules. The court restated the conjunctive conditions for stay - sufficient cause, substantial loss, no unreasonable delay and security - applying Vishram Ravji Halai v Thornton & Turpin and Kenya Shell v Kibiru. While the application was filed timeously, the court found no substantial loss disclosed in the supporting affidavit; the claim of losing land and home appeared only in submissions, which are not evidence per Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi. The application was dismissed with costs in the appeal.

Key legal issues

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01

Stay of execution pending appeal under Order 42 Rule 6

Holding

The discretion to grant stay must be exercised judicially on the grounds set out in Order 42 Rule 6(1) and (2); all conditions must be satisfied conjunctively

Reasoning

The court restated that stay is a discretionary remedy exercised on defined principles: sufficient cause, substantial loss, promptness and security, as codified in Order 42 Rule 6(1) and (2) and reiterated by the Court of Appeal in Vishram Ravji Halai v Thornton & Turpin. The court emphasised it must balance the judgment holder's right to enjoy the fruits of judgment against the need not to render an appeal nugatory, while avoiding straying into the appeal itself.

p. 4
02

Whether substantial loss was proved

Holding

Substantial loss was not proved; the applicant's supporting affidavit made a bare assertion without particulars, and the claim of losing land and home appeared only in submissions, which are not evidence

Reasoning

Substantial loss is the cornerstone of the jurisdiction to grant stay. The applicant deponed only in conclusory terms that he stood to suffer substantial loss, without disclosing specifics. The claim that execution would cost him his land and home was advanced only in counsel's submissions. Following Machira v East African Standard and Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, the court held that submissions are not evidence and cannot supply the missing proof of loss.

p. 5
03

Unreasonable delay

Holding

The application was filed without unreasonable delay, thirteen days after the ruling

Reasoning

The ruling sought to be appealed was delivered on 20th August 2024 and the application filed on 2nd September 2024, which the court found to be without unreasonable delay. The appeal itself was filed on 30th August 2024. This limb was satisfied but, because the requirements are conjunctive, failure on substantial loss was fatal to the application.

p. 4

Legal principles established

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  • An applicant for stay of execution must prove all the requirements of Order 42 Rule 6(1) and (2) conjunctively, including substantial loss supported by evidence, not submissions
  • Submissions are not evidence on which a dispute can be determined

Court orders

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  1. 1.The Notice of Motion dated 2nd September 2024 is dismissed
  2. 2.Costs shall be in the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (4)

  • Vishram Ravji Halai & Another -v- Thornton & Turpin (1963) LTD
    1990 KLR 365
  • Kenya Shell Ltd -v- Kibiru
    1986 KLR 410
  • Machira T/a Machira & Company Advocates -v- East African Standard (NO 2)
    2002 KLR 63
  • Daniel Toroitich Arap Moi -v- Mwangi Stephen Muriithi & Another
    2014 eKLR
On appeal from
Busia Chief Magistrate's Court
Elc Case No 67 of 2021
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, stay of execution pending appeal from a subordinate court

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, "Ademba v Nalwenge (Land Case Appeal E015 of 2024) [2024] KEELC 7335 (KLR)", Case Analysis (2024). Busia Environment and Land Court Appeal (appeal filed 30th August 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7335/eng@2024-11-06

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