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ELCPartially AllowedNot stated in the judgment· [2017] KEELC 3604 (KLR)

Commissioner of Lands v Heirs of the Late Wambugu Mathangani [2017] KEELC 3604 (KLR)

Not stated in the judgment (ruling delivered in Nyeri)
19 January 2017
3,000 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nyeri court granted only partial protection over compensation monies, refusing to release funds or allow advocate changes without proper procedure and security.

What this practically means

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Executive summary

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This ruling by L N Waithaka, Judge, delivered in Nyeri on 19th January 2017, disposes of three applications arising from a suit concerning monies deposited in court as compensation for land of Wambugu Mathangani (deceased), distribution of which had been stayed in the main judgment pending an appeal on the adequacy of compensation. First, Francis Wachira Mukami sought stay of execution of the judgment of 23rd September 2015 pending his intended appeal, contending his household had been omitted from the beneficiaries. Applying Order 42 Rule 6(2) and the settled principles from Sammy Some Kosgei v. Grace Jelel Boit and related authorities, the court found the application made without delay but noted absence of security and that the applicant had interest only in the portion attributable to his family. Stay was granted only in respect of that portion, conditioned on the applicant depositing security equivalent to his claim within thirty days, failing which the application would stand dismissed with costs. Second, interested parties sought leave under Order 9 Rule 9 to replace the firm of Wahinya & Company Advocates after judgment, alleging the firm had become unreachable. The court declined leave because there was no attempt at substituted service on the outgoing advocate, whose interests were directly affected by the judgment's orders. Third, Elishiba Njoki Gathaka, a 96-year-old claiming to be a beneficiary, sought Kshs.3,000,000/= from the deposited monies for upkeep and medical expenses. The court held that her entitlement was not ascertainable because the adequacy-of-compensation appeal was undetermined and the ordered list of beneficiaries unprepared, and dismissed the application with costs to the respondents.

Key legal issues

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01

Whether stay of execution pending appeal should issue under Order 42 Rule 6(2)

Holding

Stay granted only in part and conditioned on security; substantial loss was not shown in respect of the whole deposited amount

Reasoning

The court restated the settled tripartite conditions for stay: no undue delay, security, and substantial loss. The application was made within one week, so delay was not an issue. However, the applicant had not provided security and had shown interest only in the portion of the deposited monies attributable to his family, not the entire amount, so stay could not extend beyond that portion.

p. 3
02

Whether leave could issue to replace the outgoing advocate after judgment

Holding

Refused

Reasoning

Order 9 Rule 9 requires a court order before a change of advocates after judgment, ordinarily on notice to all parties. The applicants admitted non-service on the outgoing advocate but did not seek substituted service, which the court indicated would have been the proper course. Because the judgment's orders directly affect that advocate, the court declined to grant leave without service.

p. 5
03

Whether Kshs.3,000,000/= could be released to Elishiba Njoki Gathaka for upkeep and medical expenses

Holding

Dismissed with costs

Reasoning

The judgment in the suit had directed that distribution of the deposited monies be stayed pending the outcome of the defendants' appeal on adequacy of compensation, and had ordered compilation of a list of beneficiaries. Since the compensation appeal was undetermined and the beneficiary list unprepared, the applicant's entitlement was not ascertainable and the advance payment could not issue.

p. 6

Legal principles established

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  • The conditions for stay pending appeal are absence of undue delay, furnishing of security, and demonstration of substantial loss
  • A party may not change advocates or act in person after judgment without a court order under Order 9 Rule 9
  • An applicant for advance payment out of deposited monies must show beneficiary status and ascertainable entitlement under the judgment

Court orders

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  1. 1.The application dated 29th September, 2015 allowed to the extent that stay of execution is granted, subject to the applicant providing security, limited to such portion of the amount deposited in court as may devolve to his family
  2. 2.The applicant to deposit in court security equivalent to his claim to the amount deposited in court within thirty days from 19th January 2017, failing which his application shall stand dismissed with costs to the respondents
  3. 3.The application dated 5th October, 2015 for change of advocates is declined and dismissed
  4. 4.The application dated 16th February, 2016 for payment of Kshs.3,000,000/= to Elishiba Njoki Gathaka is dismissed with costs to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 13
  • Civil Procedure RulesOrder 5 Rule 17
  • Civil Procedure Act (Sections 3 and 3A)Sections 3, 3A

Cases cited (6)

  • Sammy Some Kosgei v. Grace Jelel Boit
    (2013) eKLR
  • Daniel Kihara Murage v. Jacinta Karuana Nyangi & Another
    (2015) eKLR
  • Everlyn Jebitok Keter v. Henry Kiplagat Muge & 2 Others
    (2011) eKLR
  • Robert Ngaruiya Chutha vs. Joseph Chege Ndungu
    (2014) eKLR
  • Charles Wahome Gethi v. Angela Wairimu Gethi
    Civil Application No.302 of 2007 (2008) eKLR
  • Butt v. Rent Restriction Tribunal
    (1982) KLR 419
Jurisdiction invoked
Not stated; applications brought under Order 42 Rule 6(2), Order 9 Rules 9 and 13, Sections 3 and 3A 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, "Commissioner of Lands v Heirs of the Late Wambugu Mathangani [2017] KEELC 3604 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3604/eng@2017-01-19

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