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ELCDismissedNot stated in the judgment (Notice of Motion dated 25/7/2014)· [2016] KEELC 922 (KLR)

Margaret Namalwa Lusweti v Ngorongang Psengo Longolemuk [2016] KEELC 922 (KLR)

Environment and Land Court
18 April 2016
EOE. Obaga
599 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Applicant, who was the Defendant in the main suit, moved the court by Notice of Motion dated 25/7/2014 seeking a stay of execution of the decree pending an appeal to the Court of Appeal. The underlying judgment delivered on 21/5/2014 had ordered cancellation of title to land parcel Kwanza/Kwanza Block 4/Korosi/148 on the ground that it was obtained unlawfully, though the court had declined to order registration of the land in the Respondent's name as she had sought on behalf of herself and her two sisters. The Applicant argued that cancellation would prejudice him and render the appeal nugatory, and noted his possession of the land since 2004. The Respondent opposed, contending that the land would remain available and revert to the Applicant if the appeal succeeded, and that the application was belated because the Applicant was enjoying the land. The court applied the conditions in Order 42 Rule 6 of the Civil Procedure Rules. It found the two-month delay in filing the application not unreasonable. On substantial loss, it observed that the Applicant remained in possession, there was no eviction order and no order for registration of the land in the Respondent's name, so no loss would be suffered; if the appeal succeeded, the title would simply be restored. Since substantial loss was not demonstrated, security did not arise for consideration. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether a delay of over two months in filing the application for stay is unreasonable

Holding

A delay of two months in filing the application for stay is not unreasonable

Reasoning

The judgment was delivered on 21/5/2014 and the application was filed on 25/7/2014, a period of over two months. The court held that this period was not unreasonable and proceeded to consider the other conditions under Order 42 Rule 6.

p. 1
02

Whether the Applicant will suffer substantial loss if stay is not granted

Holding

The Applicant will suffer no substantial loss because he remains in possession, there was no eviction order, and the decree did not order registration of the land in the Respondent's name

Reasoning

The court noted that although the title was ordered cancelled, no order was made for registration of the land in the Respondent's name and no eviction order issued. The Applicant remains in possession, and if he succeeds on appeal the title will be restored. Cancellation would therefore not render the appeal nugatory.

p. 2

Legal principles established

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  • Stay pending appeal will not be granted where cancellation of a title would not render the appeal nugatory, since a successful appellant can have the title restored
  • Security under Order 42 Rule 6 is only considered where substantial loss has been demonstrated

Court orders

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  1. 1.The Applicant's Notice of Motion dated 25/7/2014 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application to the Respondent

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, "Margaret Namalwa Lusweti v Ngorongang Psengo Longolemuk [2016] KEELC 922 (KLR)", Case Analysis (2016). Not stated in the judgment (Notice of Motion dated 25/7/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/922/eng@2016-04-18

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