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ELCDismissedNotice of Motion dated 30th November 2023 (appeal pending; number not stated in judgment)

Shabaya v Kamunyi (Suing through Jossy Wangechi Munyi under a Power of Attorney) (Environment and Land Appeal E025 of 2023) [2024] KEELC 6301 (KLR)

Environment and Land Court
26 September 2024
905 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kajiado refused to pause execution of a land judgment because the appellant showed no real harm from proceeding while his appeal was pending.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 30th November 2023 by the appellant, Benn Khadiagala Shabaya, seeking a stay of execution of the judgment delivered on 30th November 2023 and all consequential orders pending the hearing and determination of his appeal against a decision of the trial magistrate in a land dispute. The application, brought under Order 42 rule 6 of the Civil Procedure Rules and other provisions, was supported by the appellant's affidavit and opposed by the respondent, Robert Samuel Kariuki Kamunyi, through a replying affidavit sworn by his attorney's donee, Jossy Wangechi Munyi. The court directed that the motion be canvassed by written submissions. The appellant argued the application was brought without delay, that his property (a matrimonial home) risked demolition, that he would suffer substantial loss, that the appeal would be rendered nugatory, and offered security, citing authorities including Butt v Rent Restriction Tribunal and Arun C. Sharma. The respondent countered that no substantial loss was shown, the appeal had no chances of success, and the appellant was indolent in the lower court. The court found the appellant failed to demonstrate substantial loss, chances of success, or that the respondent could not compensate him. It also noted the appellant ought to have sought review rather than appeal, given his case had been closed after denial of an adjournment. The application was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Motion is merited - i.e. whether the appellant has met the conditions for stay of execution of the judgment issued on 30th November 2023 pending appeal

Key legal issues

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01

Whether the appellant satisfied the conditions for stay of execution pending appeal under Order 42 rule 6

Holding

The application was not merited; the appellant failed to demonstrate substantial loss, chances of success on appeal, or the respondent's inability to compensate him, and the application was dismissed with costs.

Reasoning

The court noted the appellant's case had been closed in the lower court after denial of an adjournment, and he never put forth his defence, so the respondent's ownership of the suit property stood proved. The court also observed the appellant ought to have sought review rather than appeal. Having failed to show substantial loss, a nugatory appeal, or merit in the appeal, the stay application failed.

p. 3
02

Whether the appeal was the appropriate remedy given the circumstances relied upon

Holding

The court observed that the appellant's grievance about being denied an opportunity to adduce evidence ought to have been pursued by way of review of the judgment rather than an appeal.

Reasoning

The trial magistrate had recorded that the 1st Defendant was denied further adjournment and his case closed, and that his later application to reopen the case could not be admitted since judgment was pending. The court reasoned that given these circumstances, review, not appeal, was the correct avenue, though since the appellant chose to appeal the court considered the merits anyway.

p. 3

Legal principles established

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  • An applicant for stay of execution must demonstrate substantial loss, that the appeal has high chances of success, and that the respondent would be able to compensate the applicant should the appeal succeed

Court orders

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  1. 1.The Notice of Motion dated 30th November 2023 seeking stay of execution is dismissed
  2. 2.Costs of the application awarded to the Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrates' Court
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Article 159 of the Constitution

Relief refused

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Stay of execution of the judgment issued on 30th November 2023 and all consequential orders pending the hearing and determination of the appeal

Appellant failed to demonstrate substantial loss, chances of success on appeal, or that the respondent would be unable to compensate him

p. 3

Costs of the application in the cause

Application dismissed with costs to the respondent

Costs

The application is dismissed with costs to the Respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For these reasons I find that he has failed to demonstrate that he will sufier substantial loss if these orders are not granted.
p. 3substantial loss
The upshot of the matter is that I find no merit on this application and the same is dismissed with costs to the Respondent.
p. 3disposition
Given the above reasons, the Appellant ought to have sought a review of the said Judgment and not file an appeal.
p. 3review versus appeal

Issues in the judgment

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minor

The judgment does not state the case number of the appeal or the lower court suit; the Notice of Motion is identified only by date.

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, "Shabaya v Kamunyi (Suing through Jossy Wangechi Munyi under a Power of Attorney) (Environment and Land Appeal E025 of 2023) [2024] KEELC 6301 (KLR)", Case Analysis (2024). Notice of Motion dated 30th November 2023 (appeal pending; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6301/eng@2024-09-26

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