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ELCPartially AllowedNot stated in the judgment· [2016] KEELC 279 (KLR)

Carol Construction Engineers Ltd v Naomi Chepkorir Langat [2016] KEELC 279 (KLR)

Environment and Land Court
23 March 2016
MSMunyao Sila
2,430 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court granted a landowner more time before handing back land, but only after she deposited Kshs.109.5 million as security within 14 days.

What this practically means

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Executive summary

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The defendant, Naomi Langat, applied under Order 42 Rule 6 for stay of execution of a ruling delivered by her predecessor, Justice Waithaka, which nullified eviction orders she had obtained in Nakuru CMCC No. 1857 of 2000 and ordered her to cede possession of land parcel Njoro/Ngata Block 2/130 to the plaintiff, Carol Construction Engineers Ltd, which had purchased the land at a public auction. A preliminary objection on the basis that the defendant was in contempt had already been dismissed in a ruling of 19 January 2016. Munyao Sila J declined to engage with the merits of the findings below, since those findings were the subject of the intended appeal. Applying the three conditions in Order 42 Rule 6(2), the court found the application was filed promptly, leaving substantial loss and security for determination. Substantial loss was doubtful because the defendant had never been the registered proprietor and held no title, so staying off the land pending appeal caused minimal loss. On security, the court noted the appeal was against an interlocutory possession order, not a final ownership judgment, so the land would not be 'lost' by granting possession. The plaintiff's undisputed loss of Kshs.109,500,000/= in borehole water-sale income, rather than the full property value of Kshs.142,500,000/=, was fixed as security. Stay was granted on condition of depositing that sum within 14 days, or proving it available for deposit in a joint interest-earning account, failing which the defendant was to cede possession forthwith. Costs were made costs in the intended appeal or in the cause.

Key legal issues

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01

Whether the defendant/applicant satisfied the conditions for stay pending appeal under Order 42 Rule 6(2)

Holding

Stay allowed subject to security; no unreasonable delay was shown, substantial loss was doubtful given the defendant never held title, and security of Kshs.109,500,000/= (the plaintiff's proven loss of water-sale income) was imposed rather than the full property value of Kshs.142,500,000/=

Reasoning

The court applied the three statutory conditions. Delay was absent as the application was filed promptly. Substantial loss was doubtful because the applicant was never the proprietor and held no title, so staying out of the land pending appeal caused little loss. Nevertheless, the plaintiff's undisputed deprivation of income from borehole water sales (Kshs.109,500,000/=) justified security in that sum rather than the full valuation. The court declined to revisit the merits, since the findings on the irregularly obtained eviction order were the very subject of the intended appeal.

p. 4

Legal principles established

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  • The three conditions for stay pending appeal under Order 42 Rule 6(2) are substantial loss, absence of unreasonable delay, and furnishing of security
  • Where the appeal is against an interlocutory order giving possession rather than a final judgment declaring ownership, security should reflect the loss actually suffered, not the full value of the property

Court orders

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  1. 1.Stay of execution of the ruling of 19 February 2015 granted pending appeal, subject to the defendant depositing Kshs.109,500,000/= in court within 14 days
  2. 2.In the alternative, proof within 14 days that the sum is available for deposit in a joint interest earning account, upon which the sum may be so deposited
  3. 3.If neither is done within 14 days, the defendant must forthwith cede possession of the whole of the suit land to the plaintiff and keep away for the duration of the appeal and/or suit
  4. 4.Costs of the application to be costs in the intended appeal, and if none is filed, costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Carol Construction Engineers Ltd v Naomi Chepkorir Langat [2016] KEELC 279 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/279/eng@2016-03-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.