REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CASE NO. 85 OF 2017

JILANI MONGO MADZAYO............................................................PLAINTIFF

VERSUS

JOHN NYAGAKA OSORO............................................................DEFENDANT

RULING

 This ruling is in respect of a Notice of Motion dated 14^th October 2021 by the Defendant applicant seeking for the following orders:

a)  Spent.

b)  Stay of further proceedings and execution of the decree herein on such terms as are just, is granted pending the hearing and determination of this application, an ultimately the intended appeal, so as to preserve my structures on the suit land whose demolition would be irreversible.

c)   Costs of this application are provided for.

Counsel agreed to canvas the application vide written submissions which were duly filed.

DEFENDANT APLLICANT’S SUBMISSIONS

Counsel relied on the grounds on the face of the application and the supporting affidavit of the Defendant/Applicant where he deponed that the Applicant is aggrieved by the Judgment delivered against him on 15^th September 2021 as the decree requires the him to give vacant possession of the suit land.

It was counsel’s submission that the Defendant has filed and served a Notice dated 15^th September 2021 and that the Defendant has an arguable appeal as the demolition of the structures on the suit land once done will be irreversible.

Counsel submitted that the Notice of Appeal has been filed timeously and unless the order of stay is granted the Respondent will proceed and execute the decree and will be rendered homeless as he is a polygamous man whose second family stays on the suit land.

Counsel faulted the Replying Affidavit by Partick Wara Shujaa counsel for the Plaintiff for swearing the affidavit on facts which should have been sworn by his client and urged the court to not give any probative value to the averments.

 Mr. S M Kimani further submitted that the Defendant has a right of appeal and the only issue for consideration is whether the Applicant will suffer substantial or irreparable loss unless the order of stay of proceedings and execution of the decree is granted.

Counsel cited the case of Mombasa ELC No. 58 of 2011 – Daniel Tokali Mwamunge v. Abdi H. Gurie & 7 others, where the court held that the execution of such a decree would involve both eviction from the parcel of land and demolitions of their houses. That a party should be accorded an opportunity to exhaust all their options provided under the law.

 On the issue of security for the due performance of the decree counsel submitted that the Defendant cannot be expected to give an undertaking or offer security for the due performance of the decree herein since there was no prayer for special damages or mesne profits and the award in the decree sought to be stayed does not include any monetary limb.

On the issue of stay of proceedings, counsel submitted that it is the duty of the court to preserve suit properties to avoid the appeal being rendered nugatory and cited the case of Shivabhai N. Patel v. Malibhai H. Patel (1959) E.A 907.  Counsel therefore urged the court to allow the application as prayed.

RESPONDENT’S SUBMISSIONS

Counsel for the Respondent opposed the application vide Replying Affidavit sworn by PATRICK SHUJAA WARA on the 8^th November, 2021. He deponed that the Defendant has not satisfied the conditions or the grant of stay of execution pending appeal.

Counsel deponed that t although the application has been made timeously the Applicant has not shown that he is bound to suffer substantial loss unless the order is made. Further that the allegation that the Defendant resides on the suit property together with his family is contrary to the testimony given in court by the Defendant during the hearing of the case.

Mr. Shujaa submitted the Applicant has not offered any security for the due performance of the decree in the event the intended appeal does not succeed. That the Applicant has similarly not given any undertaking not to carry out any further developments on the suit property or not to dispose off, charge or transfer the suit property.

Counsel further submitted that the requirements for an Applicant to provide security as prescribed in Order 42 Rule 6 (2) of the Civil Procedure Rules is not limited to money decrees only. That it applies to all decrees and orders whose execution a party seeks to stay and the security need not be in monetary terms only.

It was counsel’s submission that the court has unfettered discretion to grant relief on such terms or conditions as it deems just, but the court has to balance the right of the Defendant to appeal and the Plaintiff’s right to enjoy the fruits of the Judgment.

Counsel therefore urged the court to dismiss the application with costs to the Respondent. 

ANALYSIS AND DETERMINATION.

 The purpose of stay pending appeal is to preserve the substratum of the case especially in land matters where the character of the suit property may be changed while the appeal is pending. The Applicant must comply with the provisions of Order 42 Rule 6 of the Civil Procedure Rules which provides that: -

1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the Court Appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.

(2) No order for stay of execution shall be made under subrule (1) unless—

(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and

(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.

The court has the discretion to grant of refuse to grant an order of stay but the discretion must be applied judiciously. In the case of KENYA POWER & LIGHTINING COMPANY LTD VS ESTHER WANJIRU WOKABI [2014] eKLR, where the court held that; -

 “Order 46 Rule 6(2) lays down the conditions which an applicant must satisfy in order to deserve the orders of stay of execution pending appeal. However, the court stated that it noted that the conditions set out in Order Rule 6 (2) only serve as guidelines which the court can use as beacons in exercising its unfettered discretion in deciding whether or not to grant stay of execution pending appeal depending on the circumstances of each case.”

 The Applicant filed this application timeously as was admitted by the Plaintiff/Respondent hence it was brought without undue delay therefore meeting the requirement. The question is whether the Applicant has established that he will suffer substantial loss if the order sought is not granted.

As earlier stated, the purpose of stay of execution is to preserve the substratum of the case but in certain cases there would   be no need of such orders of preservation as the court has to look at the circumstances of the case. Preservation of the substratum of the case may cause more harm than good to the litigants that is why the court has discretion on whether to grant the order or not.

On the issue of substantial loss, counsel submitted that the Applicant will suffer substantial loss as the second family resides on the suit land hence will be rendered homeless. Further that the execution of the order is to the effect that the Applicant’s structures will be demolished and be evicted from the suit premises.

Substantial loss was described in the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] eKLR, where the court stated that:

“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

Counsel submitted that security for the due performance of the decree is only offered where the claim is for special damages or mesne profit, with due respect to counsel I beg to disagree with this proposition.  It does not follow that security for due performance of a decree must be monetary in nature. In land matters the court has orders that a party deposits a title deed to the suit land and in such cases there are no prayers for special or mesne profits.

 In the case of   Arun C Sharma vs. Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR, the court stated: -

“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant.  It is not to punish the judgment debtor………. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent.  That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants.  I presume the security must be one which can serve that purpose.”

I have considered the application, the submissions by counsel and find that the Applicant can be given an opportunity to pursue his appeal in the Court of Appeal but on condition that he does not do anything that changes the character of the suit land pending the appeal.  The substratum of the suit land must be preserved and the Applicant is stopped from any further construction, parting with possession or charging or selling the suit land.

The costs of the application to abide by the outcome of the appeal

DATED, SIGNED AND DELIVERED AT MALINDI THIS   24^TH DAY OF MARCH, 2022.

M.A. ODENY

JUDGE

NB: In view of the Public Order No. 2 of 2021 and subsequent circular dated 28th March, 2021 from the Office of the Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this Ruling has been delivered online to the last known email address thereby waiving Order 21 [1] of the Civil Procedure Rules.