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ELCPartially AllowedELCA Appeal No. E034 of 2024 - Murang'a

Mutuku v Karugah (Environment and Land Appeal E034 of 2024) [2024] KEELC 6907 (KLR)

Environment and Land Court
17 October 2024
3,784 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Murang'a court paused eviction from land pending appeal, but only because the appellant deposits Kshs. 100,000 in court within 15 days.

What this practically means

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Executive summary

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By a Notice of Motion dated 5th August 2024 under Order 42 Rule 1 of the Civil Procedure Rules, the Appellant, who was the Defendant in Murang'a CMCC ELC Case No. 39 of 2018, sought a stay of execution of the judgment delivered on 3rd July 2024 pending the hearing and determination of his appeal (ELCA Appeal No. E034 of 2024, Murang'a), to preserve the suit property Kakuzi/kirimiri/Block 8/928 and avoid rendering the appeal nugatory. The Respondent opposed, contending the application was brought after unexplained delay, was an afterthought, and that no security had been offered; he disclosed an auctioneer's invoice of Kshs. 800,000/= for eviction costs and sought a matching deposit as security. The court framed two issues: entitlement to the orders sought and costs. Applying Order 42 Rule 6, the court found the 32-day delay was not unreasonable given the Appellant's change of advocates; that substantial loss was demonstrated because the claim was founded on adverse possession of specific land, so damages would be inadequate; and that security was required to guarantee due performance of the decree, not to punish. Accepting the Respondent's evidence of the auctioneer's invoice under Section 107 of the Evidence Act, the court directed the Appellant to deposit Kshs. 100,000/= in court within 15 days as a condition for the stay, failing which the stay orders would automatically lapse. The application was allowed in terms of prayer No. 2, with costs in the cause.

Questions the Court framed

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

  1. 1.Whether the Appellant/Applicant is entitled to the orders sought (stay of execution pending appeal)
  2. 2.Who shall bear the costs of the application

Key legal issues

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01

Whether the application was brought without unreasonable delay

Holding

The 32-day lapse between the trial court's judgment (3rd July 2024) and the application (5th August 2024) was not inordinate or unreasonable, considering the Appellant's change of advocates.

Reasoning

The court computed the interval between delivery of the trial judgment and the filing of the stay application as 32 days. It noted the Appellant had instructed new advocates for the appeal, who needed time to familiarize themselves with the proceedings and judgment before preparing the appeal and the stay application. In those circumstances the delay did not disqualify the application.

p. 6
02

Whether the Appellant would suffer substantial loss if stay is refused

Holding

Substantial loss was established because the claim was based on adverse possession of the suit land, so damages could not adequately compensate the Appellant if the appeal succeeded after eviction.

Reasoning

The court examined the trial court's judgment, which found the Respondent's registered title under Section 26 of the Land Act had not been extinguished because the Appellant had not occupied the land for the statutory 12-year period, with the claim due to crystallize only in late 2027. Since the claim was over specific land founded on adverse possession, an award of damages would be inadequate, satisfying the substantial-loss threshold.

p. 7
03

Whether security for the due performance of the decree had been or should be given

Holding

The court exercised its discretion to direct the Appellant to deposit Kshs. 100,000/= in court as security within 15 days, as a condition for the grant of stay, failing which the stay orders would lapse automatically.

Reasoning

The Respondent produced an invoice from Icon Auctioneers dated 20th August 2024 demanding Kshs. 800,000/= as eviction costs, which the court accepted as sufficient evidence under Section 107 of the Evidence Act. Relying on the principle that security under Order 42 guarantees due performance and is not punitive, and that the court's discretion on security is unlimited but to be exercised to avoid injustice while balancing the parties' rights, the court fixed security at Kshs. 100,000/=.

p. 7

Legal principles established

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  • The purpose of a stay of execution pending appeal is to preserve the subject matter in dispute so the appellant's rights are safeguarded and a successful appeal is not rendered nugatory, weighed against the successful litigant's right to the fruits of judgment.
  • Security ordered under Order 42 Rule 6 is to guarantee due performance of the decree, not to punish the judgment-debtor.
  • Damages are inadequate compensation where the claim is founded on adverse possession of specific land.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 3rd July 2024 in Murang'a CMCC ELC Case No. 39 of 2018 granted in terms of prayer No. 2 of the Notice of Motion dated 5th August 2024
  2. 2.Appellant/Applicant to deposit Kshs. 100,000/= in court as security within 15 days from the date of the ruling, failing which the stay orders shall automatically lapse
  3. 3.Costs of the application shall be in the cause

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Murang'a
Murang'a CMCC ELC Case No. 39 of 2018
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (appellate jurisdiction over stay of execution pending appeal)

Relief refused

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Costs of the application to the Applicant

Costs are discretionary; court directed costs to be in the cause rather than awarding them

p. 7

Costs

Costs shall be in the cause

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.

The said Application is allowed in terms of prayer No 2, with a condition that the Appellant/Applicant deposits in Court ksh 100,000/= as Security, within period of 15 days from the date hereof. Failure to deposit the said security, the Stay orders issued herein will automatically lapse.
p. 7Final orders - stay granted on security condition
this court finds that costs herein shall be in the cause.
p. 7Costs order
The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory.
p. 2Purpose of stay of execution
the lapse of the 32-days period between the delivery of the trial Court's Judgment, and the lodging of the instant Application does not amount to inordinate and/or unreasonable delay, considering the circumstances of this case, and particularly the change of Advocates by the Appellant/ Applicant.
p. 6No unreasonable delay

Issues in the judgment

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minor

The judgment inconsistently dates the trial court's decision as 3rd July 2024 in places and 3rd July 2023 in others.

minor

Duplicate paragraph numbering - two consecutive paragraphs are both numbered 36.

minor

Paragraph numbering skips from 31 to 33; paragraph 32 is absent.

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, "Mutuku v Karugah (Environment and Land Appeal E034 of 2024) [2024] KEELC 6907 (KLR)", Case Analysis (2024). ELCA Appeal No. E034 of 2024 - Murang'a. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6907/eng@2024-10-17

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