Masaza v Gosi & 2 others (Environment & Land Case 85 of 2021) [2024] KEELC 5505 (KLR)
The bottom line
#The Environment and Land Court paused execution of an eviction order because carrying it out before the appeal could cause damage no money could undo.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant has met the threshold for grant of orders of stay of execution pending appeal
Key legal issues
#Substantial loss
Substantial loss established because demolition of the Applicant's property and cutting of trees would render a successful appeal nugatory
The judgment declared the 1st Defendant owner and ordered eviction; if overturned on appeal, demolition of the Applicant's structures would cause irreversible loss. Photographs showed trees being cut on the suit property. The court found substantial loss proved and guided itself by Kenya Shell Ltd v Benjamin Karuga Kigibu.
Reasonable delay
Application filed 3 months after judgment was within a reasonable time given the 6-month period to vacate
The application was filed on 1/2/2024, about 3 months after the judgment of 14/11/2023. Considering that the court had given the Applicant until 14/5/2024 to vacate, the delay was not unreasonable for purposes of Order 42 rule 6(2).
Security for costs
Court fixed its own security of Kshs 100,000/= since the Applicant offered to abide by any conditions
The Applicant made no proposal on security but deponed readiness to abide by any court order. The court took it upon itself to fix security of Kshs 100,000/= and conditioned the stay on its deposit within 45 days, alongside filing the Record of Appeal, failing which the stay would lapse.
Legal principles established
#- The purpose of stay of execution pending appeal is to preserve the subject matter in dispute so the appeal is not rendered nugatory
- An applicant for stay pending appeal must establish substantial loss, absence of unreasonable delay, and security for due performance
Court orders
#- 1.Stay of execution of the judgment rendered on 14/11/2023 and the resultant decree dated 14/11/2023 granted
- 2.The Applicants shall deposit a sum of Kshs 100,000/= in the court's account being Security for Costs for the due performance of the decree within 45 days from the date of the Ruling
- 3.The Applicants to file the Record of Appeal within 45 days from the date of the Ruling
- 4.Failure to comply with orders (a) and (b), the orders of stay issued shall automatically lapse
- 5.Costs of the Application to abide the Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1, 1A, 1B, 3 & 3A of the Civil Procedure Act; Order 42 rule 6 and Order 22 Rule 22 of the Civil Procedure Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising his undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory
Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory
Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay.
Accordingly, I hereby grant stay of execution of the judgement rendered on 14/11/2023 and the resultant decree dated 14/11/2023 in the following terms;
The Applicants shall deposit a sum of Kshs 100,000/= in the court's account being Security for Costs for the due performance of the decree within 45 days from the date of this Ruling.
Costs of the Application to abide the Appeal.
Issues in the judgment
#The Applicant is described inconsistently as Plaintiff/Applicant yet also referred to as 'Appellant' in the body of an intended appeal; the parties' roles are stated as Plaintifi/Defendant but the stay is expressly 'pending appeal'
Coram lists counsel for 'Plaintifi' as appearing for the stay applicant while the applicant filed as Plaintifi/Appellant; case number of the underlying suit and this application not stated in the extracted text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masaza v Gosi & 2 others (Environment & Land Case 85 of 2021) [2024] KEELC 5505 (KLR)", Case Analysis (2024). Not stated on face of ruling (stay application filed 1/2/2024 arising from judgment delivered 14/11/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5505/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.