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ELCDismissedELC No 35 of 2019 (Consolidated with Mombasa ELC [OS] No 63 of 2020)· [2025] KEELC 333 (KLR)

Khaki & 28 others v Juma & 5 others (Environment & Land Case 35 of 2019 & Environment and Land Miscellaneous Application E063 of 2020 (Consolidated)) [2025] KEELC 333 (KLR)

Environment and Land Court
5 February 2025
SKS. M. Kibunja
3,299 words in judgment
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The bottom line

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A Mombasa court refused to pause a land judgment because the losing party only claimed hardship without proving it.

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 Mombasa (S. M. Kibunja, J) on the defendants/applicants' Notice of Motion dated 26th July 2024, brought under Order 42 Rule 6(1) and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking stay of execution of the judgment and decree delivered on 1st July 2024 pending an intended appeal to the Court of Appeal. The underlying consolidated suits (ELC No 35 of 2019 and ELC [OS] No 63 of 2020) had ended with the plaintiffs confirmed as registered proprietors of plot number 344/1/MN, the defendants' adverse possession claim and counterclaim dismissed, eviction orders issued, and each party bearing its own costs. The applicants, through the affidavit of Ngolo Baya, argued that their homes faced demolition, that they would suffer substantial loss, and that the plaintiffs could not compensate them if the appeal succeeded. The plaintiffs, through the affidavit of Husseinali M. Khaki, opposed, asserting their confirmed title and the applicants' 2018-19 invasion of the land. The court framed two issues: whether the stay threshold was met, and costs. It found no unreasonable delay but held the applicants had not substantiated substantial loss, relying on Butt v Rent Restriction Tribunal, Muchiri v Rutere, China City Construction v Karisa, Kenya Shell v Kibiru and Machira v East African Standard. It found it unnecessary to consider security. The application was dismissed with costs to the plaintiffs under section 27 of the Civil Procedure Act, and the stay of execution was refused.

Key legal issues

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01

Whether the applicants satisfied the Order 42 Rule 6 threshold for stay of execution pending appeal

Holding

The application was dismissed; although filed without unreasonable delay, the applicants failed to prove substantial loss, so security for due performance did not fall to be considered.

Reasoning

The court applied Order 42 Rule 6(2), requiring substantial loss, absence of unreasonable delay, and security. Judgment was delivered on 1st July 2024 and the application filed on 26th July 2024, so delay was not unreasonable. However, the applicants merely deposed that their homes would be demolished and did not substantiate the nature of the loss. Following China City Construction and Machira, substantial loss is the cornerstone of stay, and a successful litigant should not be denied the fruits of judgment without proof of loss that would render the appeal nugatory.

p. 7
02

Who bears the costs of the application

Holding

The defendants, having failed in their application, were ordered to pay the plaintiffs' costs under section 27 of the Civil Procedure Act.

Reasoning

The court reasoned that costs follow the event; the unsuccessful applicants should bear the plaintiffs/respondents' costs by virtue of section 27 of the Civil Procedure Act, Chapter 21, Laws of Kenya.

p. 7

Legal principles established

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  • Substantial loss is the cornerstone of an order for stay of execution pending appeal, and an applicant must substantiate the loss, not merely allege it.
  • A successful party is ordinarily entitled to the fruits of his judgment, and suspension of execution may only be granted in exceptional circumstances upon proof of substantial loss.

Court orders

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  1. 1.That the said application (Notice of Motion dated 26th July 2024) is dismissed.
  2. 2.The defendants/applicants to pay the plaintiffs/respondents costs.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2); Order 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3A and 27

Cases cited (5)

  • Muchiri versus Rutere (Environment & Land Case 319 & 316 of 2017 (Consolidated))
    [2023] KEELC 22377 (KLR)
  • Butt v Rent Restriction Tribunal
    (1982) KLR 417
  • China City Construction Company Limited & another versus Karisa (Suing as the Administrator and Legal Representative of the Estate of the Late Didlora Mwaka Mwangala)
    (Civil Appeal 105 of 2023) [2024] KEHC 3323 (KLR)
  • Kenya Shell Limited v Kibiru
    [1986] KLR 410
  • Machira t/a Machira & Co Advocates versus East African Standard
    [2002] KEHC 1167 (KLR)
Jurisdiction invoked
Order 42 Rule 6(1) and (2) and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B & 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Khaki & 28 others v Juma & 5 others (Environment & Land Case 35 of 2019 & Environment and Land Miscellaneous Application E063 of 2020 (Consolidated)) [2025] KEELC 333 (KLR)", Case Analysis (2025). ELC No 35 of 2019 (Consolidated with Mombasa ELC [OS] No 63 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/333/eng@2025-02-05

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