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ELCPartially AllowedNot stated in judgment· [2018] KEELC 492 (KLR)

Gilbert Kathenya Mukungi v Evangeline Kanyua Mwiandi ( As legal representative of the estate of Mwiandi Kaibiru) [2018] KEELC 492 (KLR)

Environment and Land Court
21 December 2018
PNP. M. Njoroge
569 words in judgment
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The bottom line

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The court paused execution of a land judgment, but only because the applicant agreed to deposit Kshs. 1,050,000 as security within 21 days.

What this practically means

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Executive summary

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This is an ex-parte interim ruling of the Environment and Land Court at Chuka delivered by P. M. Njoroge, J, on 21 December 2018, during the court recess. The defendant/applicant moved the court under Order 6(1) and 6(2) of the Civil Procedure Rules seeking certification as urgent, ex-parte hearing, and a stay of execution/implementation of the court's judgment dated 23 October 2018 pending the inter-partes hearing and an intended appeal to the Court of Appeal. Counsel, Miss Matiri, submitted that surveyors had been taken to the suit land on 14 December 2018 to excise 7 acres pursuant to the judgment, that the applicant would suffer substantial and irreparable loss not compensable in damages, that the appeal would be rendered nugatory, and that the application was made without unreasonable delay. The court relied on Order 42 Rule 6(2), which conditions stay on substantial loss, absence of unreasonable delay and security for due performance. Holding that the suit property should be preserved pending the inter-partes hearing, the court declined to certify the application urgent but directed it be heard on a priority basis, granted prayer 2 conditionally, and ordered the defendant/applicant to deposit Kshs. 1,050,000 as security within 21 days failing which the stay would lapse. The inter-partes hearing was fixed for 27 March 2019, with service ordered within 10 days.

Key legal issues

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01

Whether interim stay of execution pending appeal should issue

Holding

Interim stay granted conditionally on deposit of security, on the court's view that the suit property should be preserved pending inter-partes hearing

Reasoning

The court noted the application was heard ex-parte during the court's recess and that surveyors had allegedly gone to the suit land to excise 7 acres. Given the risk of irremediable changes to the suit property, the judge considered preservation necessary, anchoring the decision in the Order 42 Rule 6(2) requirements of substantial loss, delay and security.

p. 1

Legal principles established

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  • No stay of execution under Order 42 Rule 6(2) shall issue unless substantial loss, absence of unreasonable delay and security for due performance are established

Court orders

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  1. 1.Application not certified urgent but to be heard on a priority basis
  2. 2.Prayer 2 granted: stay of execution/implementation of the judgment dated 23.10.2018 pending hearing of the application
  3. 3.Defendant/applicant to deposit Kshs. 1,050,000 as security with the court within 21 days, failing which the stay lapses
  4. 4.Application to be heard inter-partes on 27 March 2019
  5. 5.Defendant/applicant to serve the application upon the respondent/defendant within the next 10 days
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending intended appeal to the Court of Appeal)

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, "Gilbert Kathenya Mukungi v Evangeline Kanyua Mwiandi ( As legal representative of the estate of Mwiandi Kaibiru) [2018] KEELC 492 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/492/eng@2018-12-21

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