Susan Nyambura Mwathi v Duncan Kiria Kabete [2020] eKLR Case Summary

Court
Environment and Land Court at Chuka
Category
Civil
Judge(s)
P. M. Njoroge
Judgment Date
October 26, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Susan Nyambura Mwathi v Duncan Kiria Kabete [2020] eKLR


1. Case Information:
- Name of the Case: Susan Nyambura Mwathi v. Duncan Kiria Kabete
- Case Number: Chuka ELC Case No 03 of 2019 (OS)
- Court: Environment and Land Court at Chuka
- Date Delivered: October 26, 2020
- Category of Law: Civil
- Judge(s): P. M. Njoroge
- Country: Kenya

2. Questions Presented:
The central legal issues presented to the court include whether to grant a stay of execution of the judgment delivered on March 11, 2020, pending the hearing of an appeal filed by the plaintiff, Susan Nyambura Mwathi, and whether the conditions for granting such a stay have been satisfied.

3. Facts of the Case:
The plaintiff, Susan Nyambura Mwathi, sought relief after the court declared her the proprietor of 3 acres out of Land Parcel No. Tharaka/Chiakariga “A”/586 based on the doctrine of adverse possession. The judgment also ordered her eviction if she continued to occupy the land after ninety days. The defendant, Duncan Kiria Kabete, indicated intentions to survey and subdivide the land, leading to concerns that the plaintiff would be evicted before her appeal could be heard. The plaintiff filed an application for a stay of execution of the judgment, asserting that without it, her appeal would be rendered ineffective.

4. Procedural History:
The application for stay was filed on August 24, 2020, supported by an affidavit from the plaintiff. The defendant opposed the application, arguing that it was filed after an unreasonable delay and lacked merit. The court heard the application inter partes on October 19, 2020. The plaintiff's counsel cited the national lockdown due to the COVID-19 pandemic as a reason for the delay in filing the application. The defendant's counsel maintained that the plaintiff had not demonstrated substantial loss and that the balance of convenience favored the defendant.

5. Analysis:
- Rules: The court considered sections 1A, 1B, 3A, and 63(c) and (e) of the Civil Procedure Act, as well as Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, which govern the granting of a stay of execution.
- Case Law: The court referenced previous cases that outline the criteria for granting a stay of execution, emphasizing the need for a party seeking such relief to demonstrate the likelihood of success on appeal and the potential for irreparable harm if the stay is not granted.
- Application: The court found that while the defendant argued the application was filed late and lacked merit, the plaintiff had expressed willingness to provide security for the stay. The court ultimately determined that it was in the interest of justice to grant the stay of execution pending the appeal, provided the plaintiff deposited security in the amount of Kshs. 900,000 within 21 days.

6. Conclusion:
The court granted the plaintiff's application for a stay of execution of the judgment delivered on March 11, 2020, pending the determination of her appeal, contingent upon her depositing security. This ruling underscores the court's commitment to ensuring that the appeal process is not undermined by premature execution of the judgment.

7. Dissent:
There were no dissenting opinions recorded in this case.

8. Summary:
The Environment and Land Court at Chuka ruled in favor of the plaintiff by granting a stay of execution of the prior judgment, allowing her to appeal the decision without immediate eviction. The case highlights the balance between a party's right to enjoy the fruits of a judgment and the necessity of safeguarding the appeal process, particularly in light of exceptional circumstances such as the COVID-19 pandemic. This ruling serves as a significant precedent for similar future cases involving stays of execution in civil matters.

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