Njenga Kibutha v Jane Ngina Kukan & another; Bemwa Realtors Ltd (Interested Party) [2018] KEELC 366 (KLR)
The bottom line
#A Kenyan court paused the cancellation of a company's land title pending appeal, but only because it deposited Kshs 2 million as security within sixty days.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant satisfied the conditions for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules
The court found that substantial loss would result to the interested party if the stay was not granted, that the application was made without unreasonable delay, and that security was offered.
The order sought to be stayed nullified the interested party's title to the suit property and directed registration in the plaintiff's name. If executed, the interested party's investment of over Kshs.60,000,000/= would be put in jeopardy and it would face the risk of suits by third parties who had purchased subdivisions. The application was filed on 16th November 2017, shortly after the ruling of 3rd November 2017, hence without unreasonable delay. The interested party agreed to abide by any order on security.
Whether the plaintiff's counter-argument that the issues were already considered in the ruling of 3rd November, 2017 should defeat the application
The court acknowledged the plaintiff had been kept out of the property for years but held the interested party's right of appeal had to be protected.
The plaintiff argued that the grounds raised in the stay application had already been considered when the court nullified the title, and that he had been kept off the property for over three decades through fraud, so he would suffer more if stay was granted. The court agreed the plaintiff had been kept out for years but held that the right of appeal must be protected so that it does not become illusory, and granted a conditional stay with security.
Legal principles established
#- Substantial loss is the cornerstone of the jurisdiction for granting stay; without evidence of substantial loss it would be a rare case that an appeal is rendered nugatory
- A litigant's right of appeal must be protected so that it does not become illusory
Court orders
#- 1.Pending the hearing and determination of the appeal by the interested party to the Court of Appeal, the execution of the orders made on 3rd November, 2017 is stayed
- 2.An inhibition inhibiting the registration of any other or further dealings with all those parcels of land from Title No. I.R 170058 to Title No. I.R 170362 (L.R No. 14760/21 – 203) and any other portion of L.R No. 14760/4 pending the appeal
- 3.The status quo prevailing as of the date of the ruling in relation to the said parcels of land shall be maintained
- 4.The interested party shall deposit in an interest earning bank account in the joint names of the advocates for the plaintiff and the advocates for the interested party a sum of Kshs.2,000,000/= as security within sixty (60) days, failing which the stay shall lapse automatically
- 5.The costs of the application to be in the cause
- On appeal from
- Court of Appeal (intended appeal)
- Not stated
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njenga Kibutha v Jane Ngina Kukan & another; Bemwa Realtors Ltd (Interested Party) [2018] KEELC 366 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/366/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.