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ELCDismissedAmended Petition dated 6th February 2013 (Lamu/Manda Island land petition)· [2018] KEELC 253 (KLR)

Houd Mahmoud Athman v Attorney General & 9 others [2018] KEELC 253 (KLR)

Environment and Land Court
13 December 2018
1,165 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 refused to pause enforcement of a land judgment because the applicants showed no real evidence they would suffer loss.

What this practically means

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Executive summary

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This ruling arises from an application dated 10th September 2018 by six of the ten Respondents seeking a stay of execution of the decree following the Court's judgment of 19th July 2018, in which the Petitioner, Houd Mahmoud Athman, succeeded in his claim to be the legal and beneficial owner of parcel Lamu/Manda Island/93 and obtained an order for cancellation of titles over parcels Lamu/Manda Island/88 and 176-185. The applicants, supported by an affidavit of Swaleh Mohamed Wazir, argued they stood to lose their properties and that their intended appeal would be rendered nugatory if the decree were enforced, while the Petitioner and the Attorney General opposed the application as misconceived. Applying Order 42 Rule 6(2) and the guidance in Butt v Rent Restriction Tribunal (1982) KLR 417, the Court held that although the two-month delay in filing was not inordinate, the applicants failed to demonstrate substantial loss, having adduced no evidence beyond a bare assertion and having neither testified at trial nor established possession of the suit properties. Further, no competent appeal was pending, since the applicants had silently abandoned their prayer for extension of time to file an appeal out of time. The Court dismissed the application with costs.

Key legal issues

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01

Whether the delay of about two months in filing the stay application was unreasonable

Holding

The delay was not inordinate; blame on the previous advocate entitled the applicants to the benefit of the doubt

Reasoning

The judgment was delivered on 19th July 2018 and the application filed on 10th September 2018. The applicants attributed the delay to their previous advocate's failure to act promptly. The Court accepted this explanation and found the delay excusable in the circumstances, satisfying the first limb of Order 42 Rule 6(2) on timeliness.

p. 2
02

Whether the applicants demonstrated substantial loss

Holding

No evidence of substantial loss was tendered; the applicants neither testified at trial nor showed possession of the suit properties, so the Court could not assess likely loss

Reasoning

Other than a bare assertion of substantial and irreversible loss in the supporting affidavit, nothing was placed before the Court to enable it assess the likelihood of loss. None of the applicants had testified at trial, and it was unclear whether they were in possession or occupation of the suit properties when the decision was rendered, making it impossible to hazard the consequences of the impugned decision upon them.

p. 2
03

Whether a competent appeal pending could be rendered nugatory

Holding

No competent appeal was pending; the prayer for extension of time to file the appeal out of time was abandoned, showing the appeal on record was filed out of time

Reasoning

The applicants had included a prayer for enlargement of time to file the appeal, which was silently abandoned upon realising the Court lacked power to grant it. This revealed that the appeal already filed was out of time and thus not competent, so there was no pending appeal capable of being rendered nugatory if the decree was executed.

p. 2

Legal principles established

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  • An applicant for stay of execution must demonstrate substantial loss with evidence; mere assertion is insufficient

Court orders

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  1. 1.The application dated 10th September 2018 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder XLI rule 4(2)(b)

Cases cited (1)

  • Butt –vs- Rent Restriction Tribunal
    (1982) KLR 417
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)

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, "Houd Mahmoud Athman v Attorney General & 9 others [2018] KEELC 253 (KLR)", Case Analysis (2018). Amended Petition dated 6th February 2013 (Lamu/Manda Island land petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/253/eng@2018-12-13

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