Shabaya v Kamunyi (Suing through Jossy Wangechi Munyi under a Power of Attorney) (Environment and Land Appeal E025 of 2023) [2024] KEELC 6301 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether the appellant satisfied the conditions for stay of execution pending appeal under Order 42 rule 6
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.
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.
Whether the appeal was the appropriate remedy given the circumstances relied upon
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.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 30th November 2023 seeking stay of execution is dismissed
- 2.Costs of the application awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
#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.
The upshot of the matter is that I find no merit on this application and the same is dismissed with costs to the Respondent.
Given the above reasons, the Appellant ought to have sought a review of the said Judgment and not file an appeal.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.