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ELCAllowedNot stated in the judgment· [2018] KEELC 1604 (KLR)

Winnie Wambui Kariyu v Kageche Boro [2018] KEELC 1604 (KLR)

Environment and Land Court
28 September 2018
DOD. O. Ohungo
1,775 words in judgment
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The bottom line

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A Kenyan land court stopped an eviction pending appeal because the winning party tried to enforce more than the court had actually ordered.

What this practically means

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Executive summary

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This ruling by D. O. Ohungo, Judge of the Environment and Land Court at Nakuru, determines the defendant's Notice of Motion dated 1st December 2017 seeking stay of execution of the court's orders of 23rd November 2017 pending an intended appeal, under Order 42 Rule 6 of the Civil Procedure Rules. The 23rd November 2017 ruling had granted the plaintiff an injunction restraining the defendant from trespassing upon, encroaching upon, constructing upon or interfering with her quiet enjoyment of L.R. No. 398/19 (Original No. 398/10/4) South of Naivasha Township. The defendant deposed that he resided on the property and that the plaintiff intended to evict him, which would cause substantial loss. The plaintiff opposed, asserting the defendant occupied the property illegally, that no substantial loss or security was shown. The court applied the familiar triple test: substantial loss, absence of unreasonable delay, and security. It found the applicant had demonstrated substantial loss because the extracted order had wrongly included 'remaining' on the property as restrained - a term absent from the ruling - and the Deputy Registrar should have been keener when approving the draft order; had eviction been intended, mandatory injunction principles would have been considered. The application filed a week after the ruling involved no unreasonable delay. Although no security had been offered, the court held its discretion extended to fixing security, and set it at KShs 2,000,000 given the property's size and value. The stay was granted for 18 months or until determination of the appeal, whichever came earlier, with costs of the application to the defendant.

Key legal issues

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01

Substantial loss

Holding

The applicant demonstrated substantial loss because an eviction was intended despite the court not having ordered eviction in its ruling of 23rd November 2017.

Reasoning

The ruling of 23rd November 2017 granted only a prohibitory injunction and did not include the word 'remaining' as restrained; any extracted order suggesting eviction went beyond the ruling. The respondent's replying affidavit confirmed an intention to evict, so the applicant would suffer substantial loss if stay were refused.

p. 2
02

Unreasonable delay

Holding

There was no unreasonable delay; the application was filed one week after the ruling.

Reasoning

The ruling sought to be appealed was delivered on 23rd November 2017 and the Notice of Motion for stay was filed on 1st December 2017, about one week later, and a Notice of Appeal had been filed on 30th November 2017, satisfying the timeliness requirement.

p. 2
03

Security

Holding

Security of KShs 2,000,000 was appropriate even though the applicant had not offered any, the court's discretion extending to fixing security.

Reasoning

The decision to grant stay is discretionary, and the discretion includes determining appropriate security whether or not the applicant offered any. Considering the 25-acre suit property said to have been purchased for KShs 160,000,000 and the defendant's tenancy since about 1981-1984, KShs 2,000,000 was fixed as appropriate security.

p. 2

Legal principles established

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  • A stay of execution will be granted so that an appeal, if successful, is not rendered nugatory.
  • Substantial loss is the cornerstone for granting a stay of execution.
  • The court's discretion on stay extends to determining what security is appropriate even where the applicant has offered none.

Court orders

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  1. 1.The order of the court made on 23rd November 2017 is stayed pending hearing and determination of an appeal, for 18 months from delivery of the ruling or until the appeal is determined, whichever occurs earlier
  2. 2.The defendant shall deposit security in court of KShs 2,000,000 within 21 days, failing which the stay shall lapse and the Notice of Motion dated 1st December 2017 shall stand dismissed with costs to the plaintiff
  3. 3.Costs of the application are awarded to the defendant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder XLI rule 4 (as cited in Kenya Shell Ltd v Benjamin Karuga Kibiru)

Cases cited (5)

  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • Wilson v Church (No 2)
    12 Ch D (1879) 454
  • Erinford Properties Limited v Cheshire County Council
    [1974] 2 All ER 448
  • Attorney General v Emerson and Others
    24 QBD (1889) 56
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010

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, "Winnie Wambui Kariyu v Kageche Boro [2018] KEELC 1604 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1604/eng@2018-09-28

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