[2021] KEELC 239 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MERU

ELC APPEAL 74 OF 2021

JAPHET MUNENE.........................................................APPELLANT

VERSUS

DOROTHY GAKII MUNGANIA.......................1ST RESPONDENT

KAJUJU F. MURITHI.........................................2ND RESPONDENT

HONESTY KINANU MURIANKI.....................3RD RESPONDENT

HELLEN NKIRANGA MWONGERA..............4TH RESPONDENT

JANE KANYUA...................................................5TH RESPONDENT

RULING

1. The applicant seeks stay of execution of the judgment delivered on 18. 5.2021 in Githongo ELC No. 81 of 2018 pending the hearing and determination of this appeal.

2. The application is supported by an affidavit sworn on 14. 9.2021. The 2nd respondents oppose the application through a replying affidavit sworn on 22. 10. 2021.

3. Order 42 rule 6 provides an application for stay to satisfy three principles:-

i. Sufficient loss

ii. There has been no inordinate delay

iii. Security for due execution of the decree

4. In expounding the above principles, courts have held execution is a legal process and therefore a party who has lost in a suit and faces execution cannot use that as a basis of substantial loss. He has to demonstrate much more than a mere assertions that there is an impending execution. See Century Oil Trading Co. Ltd –vs- Kenya Shell Ltd Nairobi.

5. In Ezekiel Mule Musembi –vs- H Young Co. (E.A) Ltd [2019] eKLRthe court held that over and above the above grounds, Sections 1A, 1B and 3A of the Civil Procedure Act on the overriding objective of the court to do justice to the parties must also be taken into consideration.

6. In Butt –vs- Rent Restriction Tribunal [1979] eKLR, the court held the power to refuse or grant stay is discretionary in nature exercisable in a way as not to prevent an appeal being rendered nugatory. So long as there are good grounds the court held stay should not be refused.

7. The yard stick is to balance or weigh the scales of justice by ensuring an appeal is not rendered nugatory while at the same time ensuring the successful litigant is not stopped from enjoying the fruits of his judgment. See Samvir Trustee Ltd. –vs- Guardian Bank Ltd [2007] eKLR.

8. The appellant states the respondents are married, do not reside on the premises, will suffer no material loss; she is apprehensive they are at the verge of disposing of the suit land hence render him homeless.

9. The appellant does not say he resides on the suit premises. He gives no basis why he thinks there is an impending disposal of the suit property and lastly he has not demonstrated that the execution will create a state of affairs that will irreparably affect him should he succeed in the appeal.

10. The appellant bears the burden to demonstrate substantial loss.

11. On the other hand the 2nd respondent denies the allegations that they intend to dispose of the land, and asserts they have been in occupation of the suit land. The 1st respondent has clearly given vivid details on the current status of the land unlike the applicant in his supporting affidavit.

12. The decree is clear on what was ordered which is a negative order. In Milcah Jeruto –vs- Fina Bank Ltd [2013] eKLR it was held stay cannot be granted where a negative order had been issued; since as per Section 2 of the Civil Procedure Act, such decree is not capable of being executed.

13. The same position was taken by the Court of Appeal in Cooperative Bank of Kenya Ltd. –vs- Banking Insurance & Finance Union (Kenya) [2015] eKLRand held as thus:

“An order for stay of execution is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree. The delay of performance presupposes the existence of a situation called a positive order, either an order that has not been complied with or has partly been complied with.”

14. The lower court merely dismissed the appellant’s suit with costs. It has not been stated that costs have been assessed and are due for execution against the appellant.

15. Due to the foregoing I am of the view the application lacks merits. The same is dismissed with costs.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 20TH DAY OF DECEMBER, 2021

In presence of:

Mukanguru for appellant

Wambua for respondents

Court Assistant – Kananu

HON. C.K. NZILI

ELC JUDGE