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ELCAllowedNotice of Motion dated 29th May 2017 (Eldoret Environment and Land Court)· [2017] KEELC 1225 (KLR)

Catherine C Kittony v Jonathan Muindi & 3 others [2017] KEELC 1225 (KLR)

Environment and Land Court
12 October 2017
MOM.A ODENY
1,018 words in judgment
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The bottom line

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An Eldoret court paused enforcement of a land judgment, confirming that acting fast after losing can protect your right to appeal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret, delivered by M.A Odeny J on 12th October 2017, determined a Notice of Motion dated 29th May 2017 in which the plaintiff, Catherine Kitony, sought stay of execution of the judgment and decree of the same court delivered on 24th May 2017 in Catherine Kitony v Jonathan Muindi Dome, The Chairman Kapsabet Division Land Disputes Tribunal and the Attorney General, pending her intended appeal (Eldoret Civil Appeal No. 33/17). Counsel for the applicant submitted that the conditions in Order 42 Rule 6(2) of the Civil Procedure Rules were met: the application was filed five days after judgment; substantial loss would result because the decree had been extracted, the title cancelled and possibly lodged with the Uasin Gishu Land Registrar for a split, rendering the appeal nugatory; and, relying on Charles Ngatia v Ekira Gathoni Kariithi & another (2014) e KLR, that security was unnecessary since a stay would not reverse the decree. The 1st respondent, Francis Muindi, opposed the application as a waste of judicial time and urged its dismissal with costs. The court applied the settled tripartite test, found the application timeous, held that partial execution would detrimentally affect the pending appeal, noted that the respondents were already in occupation so stay would not change the status quo, and adopted the Ngatia reasoning on security. The application was allowed with costs in the cause.

Key legal issues

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01

Whether the threshold in Order 42 Rule 6(2) for stay pending appeal was met

Holding

The court found the threshold satisfied: the application was filed 5 days after judgment, substantial loss would be that the appeal is rendered nugatory given the decree's partial execution (cancellation of title and intended split), and security was unnecessary.

Reasoning

The court applied the settled tripartite test under Order 42 Rule 6(2). Filing within 5 days of judgment showed expedition. Because the title had been cancelled and the decree extracted and possibly lodged with the Land Registrar for a split, execution could proceed to the detriment of the pending appeal. Respondents already being in occupation meant stay would not alter the status quo. On security, the court adopted Ombwayo J's reasoning in Charles Ngatia that security is irrelevant where the land is protected by the decree.

p. 2

Legal principles established

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  • The conditions for granting stay pending appeal under Order 42 Rule 6(2) are that the application be brought expeditiously, that substantial loss may result unless the order is made, and that security for due performance of the decree may be ordered.
  • Where the disputed land is protected by the decree of the court, the issue of security is not relevant since a stay of execution will not reverse the decree.

Court orders

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  1. 1.Stay of execution of the judgment and decree of the Environment and Land Court at Eldoret delivered on 24th May 2017 pending the hearing and determination of the intended appeal (Eldoret Civil Appeal No. 33/17)
  2. 2.Costs of the application in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (1)

  • Charles Ngatia Vs Ekira Gathoni Kariithi & another
    (2014) e KLR
On appeal from
Environment and Land Court at Eldoret
Catherine Kitony v Jonathan Muindi Dome, The Chairman Kapsabet Division Land Disputes Tribunal & the Attorney General (judgment delivered 24th May 2017)
Jurisdiction invoked
Order 42 Rule 6(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, "Catherine C Kittony v Jonathan Muindi & 3 others [2017] KEELC 1225 (KLR)", Case Analysis (2017). Notice of Motion dated 29th May 2017 (Eldoret Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1225/eng@2017-10-12

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