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ELCDismissedNot stated in judgment (ruling on Notice of Motion dated 22nd May 2017)· [2017] KEELC 912 (KLR)

Peter Kim Baker & another v Sidi Katana Bongo & another [2017] KEELC 912 (KLR)

Environment and Land Court
29 November 2017
1,709 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer who couldn't prove the purchase price was actually paid lost their bid to delay execution of a judgment cancelling their title.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Malindi (Olola J) deals with a Notice of Motion dated 22nd May 2017 in which the Plaintiffs sought a stay of execution of the judgment delivered on 12th May 2017, by which the Court dismissed their suit, allowed the Defendants' counterclaim, issued a permanent injunction, and ordered cancellation of their titles to Kilifi/Mtondia/1113 and 1114 and rectification of the register in favour of the deceased registered proprietor, Katana Bongo Masha. The Plaintiffs, describing themselves as innocent purchasers for value, argued the cancellation orders would divest them of titles worth Kshs 13,857,780 and render their intended appeal nugatory. The Defendants opposed, asserting they had always lived on the land and that the suit was an attempt to delay the fruits of a regularly obtained judgment. The Court applied Order 42 Rule 6 of the Civil Procedure Rules and the conditions set out in Italal v Thornton & Turpin Ltd, Global Tours and Travels Ltd and Machira v East African Standard. It accepted the application was filed timeously, but found no substantial loss: the Sale Agreement showed only Kshs 785,778 as deposit, the vendor had died in June 2009 before the agreement date, and the purchase price never reached the deceased's estate, the transfer having been fraudulently effected. The Plaintiffs also failed to show the Respondents could not compensate them if the appeal succeeded, and were remitted to the succession cause to contest their interest. The application was dismissed with costs.

Key legal issues

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01

Whether the Plaintiffs demonstrated substantial loss to justify a stay of execution

Holding

No substantial loss was shown; the deposit allegedly paid never reached the deceased vendor's estate and the title transfer was found fraudulent

Reasoning

The Court compared the Plaintiffs' claimed value of Kshs 13,857,780 with the Sale Agreement showing only Kshs 785,778 to be deposited, and noted the vendor had died in June 2009 before the alleged agreement date. Since the purchase price never passed to the estate, the Plaintiffs failed to show they would suffer substantial loss if execution proceeded.

p. 3
02

Whether the application was brought without undue delay

Holding

Yes, the application filed 10 days after judgment was made timeously

Reasoning

The Court accepted that the application, filed some 10 days after the judgment of 12th May 2017, satisfied the requirement of being made without unreasonable delay under Order 42 Rule 6(2). However, this alone did not entitle the Plaintiffs to a stay since the substantial loss condition failed.

p. 3
03

Whether the Respondents could compensate the Plaintiffs if the appeal succeeds

Holding

The Plaintiffs did not convince the Court that the Respondents have no means to compensate them

Reasoning

The Court noted that the Plaintiffs would have an opportunity to contest their interest in the succession cause once the properties revert to the deceased's name, and that the Plaintiffs failed to demonstrate that the Respondents would be unable to compensate them should the appeal succeed.

p. 4

Legal principles established

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  • Stay of execution under Order 42 Rule 6 requires sufficient cause, substantial loss, no unreasonable delay and furnishing of security
  • A successful party is ordinarily entitled to the fruits of its judgment unless the applicant for stay demonstrates grounds warranting stay

Court orders

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  1. 1.The application for stay of execution dated 22nd May 2017 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (3)

  • Italal & Another –vs- Thornton & Turpin Ltd
    (1993) KLR 365
  • Global Tours and Travels Ltd
    WC No. 43 of 2000 (UR)
  • Machira T/A Machira & Company Advocates –vs- East African Standard (No. 2)
    (2002) KLR 63
Jurisdiction invoked
Order 42 Rule 6(1) and (2) 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, "Peter Kim Baker & another v Sidi Katana Bongo & another [2017] KEELC 912 (KLR)", Case Analysis (2017). Not stated in judgment (ruling on Notice of Motion dated 22nd May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/912/eng@2017-11-29

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