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ELCDismissedNot stated in the judgment (application within an appeal from Meru CMCC ELC No. 122 of 2019)· [2025] KEELC 119 (KLR)

Notice of Motion dated 16.10.2024 (Applicants v Grace Karwirwa & Another) – application for stay of execution pending appeal

Environment and Land Court
20 January 2025
OMOguttu Mboya
2,608 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court dismissed a stay of execution bid because no appeal existed against the judgment and no real loss was proven.

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 Meru (Oguttu Mboya J) on a notice of motion dated 16 October 2024 by the appellants/applicants seeking stay of execution of the decree in Meru CMCC ELC No. 122 of 2019, both pending the application and pending appeal, grounded on Order 40 Rules 1 & 2, Order 10 Rule 1 of the Civil Procedure Rules and Section 68 of the Land Registration Act. The applicants argued they occupied and had developed homesteads on the suit property and faced eviction that would render the appeal nugatory. The respondents, through a replying affidavit of Grace Karwirwa, opposed the application as an abuse of process, noting a prior similar application dated 30 March 2023 had been dismissed, that no substantial loss was shown, and that the decree had already been executed with the respondents now in occupation. The court framed two issues: sufficient cause and substantial loss. It held that no appeal existed against the judgment and decree of 4 October 2024 sought to be stayed - the pending appeal concerned only the ruling of 24 January 2023 striking out the defence - rendering the application premature and made in a vacuum. On substantial loss, relying on Kenya Shell Ltd v Kibiru and James Wangalwa v Cheseto, the court found none demonstrated, observing the judgment ordered only an injunction, removal of caution and costs, with no eviction, so the fear of eviction was imaginary. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether sufficient cause was established for stay of execution

Holding

No sufficient cause was established because there is no appeal against the judgment and decree of 4.10.2024 sought to be stayed; the only appeal concerns a ruling of 24.1.2023 striking out the defence.

Reasoning

Order 42 Rule 6(1) CPR contemplates stay of execution in respect of a decree or order appealed from. Since no appeal has been filed against the 4.10.2024 judgment and decree, the application for stay pending appeal is made in a vacuum and is premature. The court relied on the Attorney General v Law Society of Kenya definition of sufficient cause.

p. 4
02

Whether substantial loss was demonstrated

Holding

No substantial loss was established. The judgment did not order eviction of anyone; it granted a permanent injunction, removal of caution and costs, so the applicants' fear of eviction was imaginary.

Reasoning

Citing Kenya Shell Ltd v Benjamin Karuga Kibiru and James Wangalwa v Agnes Naliaka Cheseto, the court reiterated that substantial loss is the cornerstone of stay jurisdiction and must be substantiated by evidence, not inferred. The terms of the judgment reveal no eviction order, undermining the applicants' claim that they would be rendered homeless.

p. 5

Legal principles established

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  • An application for stay of execution pending appeal can only be mounted in an existing appeal against the decision sought to be stayed; absent such an appeal there is no sufficient cause.
  • Substantial loss is the cornerstone of an order of stay of execution pending appeal; without evidence of substantial loss the stay cannot be granted.

Court orders

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  1. 1.The application dated 16.10.2024 be and is hereby dismissed.
  2. 2.Costs of the application be and are hereby awarded to the respondents.
On appeal from
Chief Magistrate's Court, Meru
Meru CMCC ELC No. 122 of 2019
Jurisdiction invoked
Order 40 Rules 1 & 2 and Order 10 Rule 1 of the Civil Procedure Rules; Section 68 of the Land Registration Act 2012; stay of execution under Order 42 Rule 6(1) of the Civil Procedure Rules

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, "Notice of Motion dated 16.10.2024 (Applicants v Grace Karwirwa & Another) – application for stay of execution pending appeal", Case Analysis (2025). Not stated in the judgment (application within an appeal from Meru CMCC ELC No. 122 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/119/eng@2025-01-20

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