Mossy Khaemba Muchanga & Davis Wabwile Muchanga v Paul Lutoti Khawanga [2020] eKLR Case Summary

Court
Environment and Land Court at Bungoma
Category
Civil
Judge(s)
Hon. Boaz N. Olao
Judgment Date
October 22, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Mossy Khaemba Muchanga & Davis Wabwile Muchanga v Paul Lutoti Khawanga [2020] eKLR, highlighting key legal insights and implications from this landmark decision.

Case Brief: Mossy Khaemba Muchanga & Davis Wabwile Muchanga v Paul Lutoti Khawanga [2020] eKLR

1. Case Information:
- Name of the Case: Mossy Khaemba Muchanga & Davis Wabwile Muchanga v. Paul Lutoti Khawanga
- Case Number: ELC MISCELLANEOUS APPLICATION NO. 17 OF 2020
- Court: Environment and Land Court at Bungoma
- Date Delivered: 22nd October 2020
- Category of Law: Civil
- Judge(s): Hon. Boaz N. Olao
- Country: Kenya

2. Questions Presented:
The central legal issues presented before the court were whether the Applicants could obtain a stay of execution of the judgment and decree from the lower court pending the hearing and determination of their appeal, and whether they met the criteria set forth in the Civil Procedure Rules for such an order.

3. Facts of the Case:
The Applicants, Mossy Khaemba Muchanga and Davis Wabwile Muchanga, sought a stay of execution of a judgment delivered on February 20, 2020, which favored the Respondent, Paul Lutoti Khawanga, in a prior case concerning land parcel No. East Bukusu/East Sangalo/311. The Respondent's judgment allowed for the eviction of the Applicants from the suit land. The Applicants claimed that their eviction would result in substantial loss and damage, asserting that they had filed an appeal with high chances of success. The Respondent opposed the application, arguing that the Applicants had not provided a satisfactory explanation for the delay in filing the application and that the application was incompetent due to a change of legal representation without court approval.

4. Procedural History:
The Applicants filed their Notice of Motion on September 16, 2020, seeking a stay of execution of the decree from the lower court. The Respondent filed a replying affidavit objecting to the application, citing procedural noncompliance and arguing that the Applicants had not demonstrated an arguable appeal or substantial loss. The application was argued through written submissions from both parties’ legal representatives.

5. Analysis:
- Rules: The court referenced Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, which governs the granting of stays of execution pending appeal. The Applicants needed to demonstrate substantial loss, file the application without unreasonable delay, and provide security for the performance of any decree that may be binding on them.
- Case Law: The court cited *Kenya Shell Ltd v. Benjamin Kibirui & Another* and *Machira T/A Machira & Company Advocates v. East African Standard (No 2)* to underscore that the burden of proving substantial loss lies with the Applicants and that mere assertions are insufficient without specific details. The court also referenced the case of *Tobias M. Wafubwa v. Ben Butali* regarding the non-fatal nature of procedural irregularities if no prejudice is shown.
- Application: The court found that the Applicants failed to demonstrate substantial loss, as they did not provide specific details about the nature of the loss they would suffer if the stay were not granted. Additionally, the delay of seven months in filing the application was deemed unreasonable, as no satisfactory explanation was provided. The court acknowledged the Applicants' willingness to abide by any conditions imposed by the court but concluded that they did not satisfy all necessary criteria for a stay of execution.

6. Conclusion:
The court dismissed the Applicants' motion for a stay of execution, determining that they did not meet the requisite threshold outlined in Order 42 Rule 6 of the Civil Procedure Rules. The dismissal of the application implies that the Respondent may proceed with the execution of the judgment, highlighting the importance of timely and substantiated applications in civil proceedings.

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

8. Summary:
The ruling in *Mossy Khaemba Muchanga & Davis Wabwile Muchanga v. Paul Lutoti Khawanga* emphasizes the strict adherence to procedural rules in civil litigation and the necessity for applicants to substantiate claims of substantial loss when seeking a stay of execution. The court's decision to dismiss the application reinforces the principle that procedural compliance is critical in safeguarding the rights of all parties involved in litigation.

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