Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment· [2018] KEELC 1558 (KLR)

Republic v National Land Commission & 2 others [2018] KEELC 1558 (KLR)

High Court of Kenya
29 May 2018
1,451 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The High Court in Kitale refused to halt an eviction ordered by the National Land Commission because the applicant could not prove he would suffer substantial loss.

What this practically means

#

Executive summary

#
The Ex Parte Applicant moved the court by an application dated 3rd April 2018 under Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 3A and 63(e) of the Civil Procedure Act, seeking stay of enforcement or execution of a Notice of Eviction issued by the National Land Commission on 27th July 2017, pending the lodging, hearing and determination of an intended appeal. He deponed that the 14-day stay granted earlier was to lapse on 3rd April 2018, that he had established his home on the land, and that eviction would render him homeless and his appeal moot. The interested parties opposed, contending that the criteria for stay were not met, that the land was not registered in the applicant's name, that no developments had been shown, and that stay would militate against public interest and deny the successful party the fruits of its judgment. The court set out the Order 42 rule 6(2) conditions: substantial loss, absence of unreasonable delay, and security, citing Butt v Rent Restriction Tribunal. It found the application timeously filed and security offered, but held that no substantial loss had been demonstrated: the land was not registered in the applicant's name, no evidence of structures was given, and no disposal of the land was shown. Since all conditions must be proved without exception, the application was dismissed with costs to the respondents and the interested parties.

Key legal issues

#
01

Substantial loss

Holding

No substantial loss was demonstrated because the suit land is not registered in the applicant's name and no evidence of structures on the land was given

Reasoning

The court found no evidence of structures on the land and noted its earlier judgment that the land is not registered in the applicant's name. Without registration it is difficult to see how he would suffer substantial loss; the land would still exist at the end of the appeal, and the applicant did not show any intention to dispose of the land or part with its possession.

p. 2
02

Timeous filing

Holding

The application was filed timeously and the applicant was blameless on this condition

Reasoning

The application was filed soon after judgment was delivered and before the lapse of the 14-day stay granted upon oral application. This condition was therefore satisfied, though satisfaction of one condition alone could not sustain the application.

p. 2
03

Security

Holding

The applicant had offered security, though without definite details, and the court would have defined it had it been inclined to grant the orders

Reasoning

Although no definite details of security were given, the court found that security had been offered and that it would have defined the security to be deposited had it been minded to grant the stay. This condition was thus not the basis for refusal.

p. 2

Legal principles established

#
  • All conditions for the grant of a stay of execution must be proved without exception; failure to establish substantial loss is fatal to the application
  • The conditions for stay under Order 42 rule 6(2) are that substantial loss may result unless the order is made, the application is made without unreasonable delay, and security is given

Court orders

#
  1. 1.The application dated 3rd April 2018 is dismissed
  2. 2.Costs of the application awarded to the respondents and the interested parties

Authorities

#

Legislation

  • The Civil Procedure RulesOrder 42 Rule 6
  • The Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)

Cases cited (7)

  • Daniel Wambua Ndabi V Peter Luka Ndutu
    [2008] eKLR
  • Butt vs. Rent Restriction Tribunal
    [1982] KLR 417
  • Wilson vs. Church (No.2)
    12 Ch. D 454
  • John Mwangi Nderitu Vs Joseph Ndiritu Wamathai
    Nyeri CA 22 of 2016 (2016 eKLR)
  • Elena D.Korir vs Kenyatta University
  • Halal & another vs Thornton & Turpin Ltd
  • Hassan Guyo Wakalo vs Straman EA Ltd
    (2013)
Jurisdiction invoked
Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 3A and 63(e) of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v National Land Commission & 2 others [2018] KEELC 1558 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1558/eng@2018-05-29

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