Mayenga & 2 others v Khamis & another (Environment and Land Appeal E024 of 2024) [2024] KEELC 7407 (KLR)
The bottom line
#Kenya's Mombasa Land Court stopped evictions pending appeal, but only because the landowners deposited their title documents as security within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The Applicants demonstrated they would suffer substantial loss if eviction proceeded; execution by itself is not substantial loss but here the applicants' occupation rights pending appeal were at stake
The court applied the established tests from Kenya Shell, Mukuma v Abuoga and James Wangalwa, that substantial loss is the cornerstone of stay applications and must be demonstrated beyond the mere fact that execution has been set in motion. It found the applicants had adequately shown that attachment and eviction would irreparably affect the core of their appeal, outweighing the respondents' wait to enjoy the fruits of judgment.
Undue delay
The application was filed without undue delay, one month after the impugned ruling
The ruling dismissing the application to set aside the warrants was delivered on 17th May, 2024; the warrants issued on 13th June, 2024 and the application was filed on 24th June, 2024. The court held this interval showed no undue delay, satisfying the second prerequisite of Order 42 Rule 6.
Security
Although the applicants made no provision for security, the court crafted its own security condition, requiring deposit of title documents of the suit parcels within 30 days
Relying on Aron C. Sharma v Ashana Raikundalia, the court held that security serves to guarantee due performance of the decree and that the court is not bound by the type of security offered by the applicant but may craft appropriate orders serving the interests of justice. It therefore conditioned the stay on deposit of the title documents.
Costs
Despite the principle that costs follow the event, the court made no order as to costs
Section 27(1) of the Civil Procedure Act provides that costs follow the event, as affirmed in Jasbir Rai Singh and Cecilia Karuru Ngayo. However, the court exercised its discretion to reserve costs and made no order as to costs.
Legal principles established
#- Stay of execution pending appeal is discretionary and requires substantial loss, absence of undue delay, and security
- The purpose of stay is to preserve the subject matter so a successful appeal is not rendered nugatory, balancing the appellant's right with the decree holder's fruits of judgment
- Security under Order 42 Rule 6 guarantees due performance of the decree and is not intended to punish the judgment debtor
Court orders
#- 1.The Notice of Motion application dated 24th June, 2024 be and is hereby found to have merit and hence allowed subject to the fulfilment of the Pre-Conditions stated herein
- 2.A stay of execution of the warrants of eviction dated 13th June, 2024 pending the hearing and determination of the Appeal filed herein
- 3.The Appellants/Applicants to deposit title documents of the listed Land Parcels (313/2, 313/3, 336, 337, 464, 473, 494, 495, 1090-1099, 1598, 1600-1627, 1881-1883, 547, 500-506, 1035, 1036, 3015-3074, 5318-5375/III/MN and all subdivisions created from 313(2), 313(3)/III/MN the Mother Titles) within Thirty (30) days to the custody of the Court pending the hearing and determination of the appeal
- 4.Failure to adhere with the condition under Clause (c), the application shall automatically stand dismissed and execution of the warrants shall ensue procedurally as provided by law
- 5.Appellants/Applicants directed to compile and serve the Records of Appeal upon the Respondents within the next 45 days of the delivery of the Ruling
- 6.Mention on 23rd January, 2025 for admitting the appeal and taking directions pursuant to Section 79B of the Civil Procedure Act and Order 42 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010
- 7.There shall be no orders as to costs
- On appeal from
- Subordinate Court (trial court)
- Not stated
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya 2010; Order 42 Rule 6 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mayenga & 2 others v Khamis & another (Environment and Land Appeal E024 of 2024) [2024] KEELC 7407 (KLR)", Case Analysis (2024). Notice of Motion dated 24th June, 2024 (appeal pending; trial court ruling dated 10th May, 2024 delivered 17th May, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7407/eng@2024-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.