Esther Wandii Maingi & another v Macharia Chege [2020] eKLR Case Summary

Court
Environment and Land Court at Machakos
Category
Civil
Judge(s)
O.A. Angote
Judgment Date
October 09, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Esther Wandii Maingi & another v Macharia Chege [2020] eKLR, detailing key legal arguments, judgments, and implications for future cases.

Case Brief: Esther Wandii Maingi & another v Macharia Chege [2020] eKLR

1. Case Information:
- Name of the Case: Esther Wandii Maingi & Peter Mutua Kikole v. Macharia Chege
- Case Number: ELC. APPEAL NO. 58 OF 2019
- Court: Environment and Land Court at Machakos
- Date Delivered: 9th October 2020
- Category of Law: Civil
- Judge(s): O.A. Angote
- Country: Kenya

2. Questions Presented:
The central legal issue presented to the court was whether the Applicants (Esther Wandii Maingi and Peter Mutua Kikole) were entitled to a temporary stay of execution of the judgment and decree issued in Kithimani M.E.L.C Case No. 27 of 2018, pending the hearing and determination of their appeal.

3. Facts of the Case:
The Appellants, Esther Wandii Maingi and Peter Mutua Kikole, were sued by the Respondent, Macharia Chege, regarding property identified as Ndalani/Ndalani Block 1/389. The Appellants claimed they were misled by an individual posing as an advocate, which resulted in their failure to adequately defend against the suit. This individual was unable to represent them at trial, leading to a judgment being entered against them. Upon receiving the decree from the lower court, the Appellants realized the fraud and sought to appeal the judgment. They argued that the Respondent threatened to execute the judgment, which would render their appeal moot.

4. Procedural History:
The Appellants filed a Notice of Motion on 11th December 2019, seeking a stay of execution. This application was supported by an affidavit from Esther Wandii Maingi. The Respondent countered by asserting that the Appellants had been served with summons and had failed to file a defense in a timely manner. The court considered written submissions from the Respondent, which included a request for the Appellants to deposit the decretal amount in a joint interest-earning account as a condition for granting the stay.

5. Analysis:
- Rules: The court considered Sections 1A, 1B, and 63(c) and (e) of the Civil Procedure Act, along with Order 42 Rule 6 of the Civil Procedure Rules, which outlines the conditions for granting a stay of execution pending appeal. Specifically, it requires that the applicant demonstrates substantial loss may occur if the stay is not granted and that security for the decree is provided.

- Case Law: The court referenced the case of *Kenya Shell Limited v. Benjamin Karuga Kigibu & Ruth Wairimu Karuga* (1982-1988) 1 KAR 1018, which emphasized that substantial loss is a key consideration in granting a stay. The court also cited *Superior Homes (Kenya) Ltd v. Musango Kithome* (2019), where a similar directive regarding the deposit of the decretal sum was made.

- Application: The court found that the Appellants would suffer substantial loss if the stay was not granted, as the Respondent's registration as the landowner would prevent the Appellants from accessing the property. The court noted that the property would remain intact during the appeal process, and thus did not require the Appellants to provide security.

6. Conclusion:
The court granted the Application for a temporary stay of execution pending the appeal's determination. It ruled that the Appellants would suffer substantial loss without the stay, and therefore the execution of the judgment was stayed. Each party was ordered to bear its own costs.

7. Dissent:
There were no dissenting opinions noted in this ruling.

8. Summary:
The court's decision to grant a stay of execution underscores the importance of protecting the rights of parties who may be adversely affected by a judgment during the appeal process. This ruling highlights the court's discretion in assessing substantial loss and the conditions necessary for granting a stay, reinforcing the legal principle that an appeal should not be rendered nugatory.

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