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ELCPartially AllowedApplication dated 27.3.2017 and 19.4.2017· [2018] KEELC 3371 (KLR)

Abdi Adam Hussein & 2 others v Attorney General & 2 others [2018] KEELC 3371 (KLR)

Environment and Land Court
17 April 2018
AOA. Ombwayo
1,719 words in judgment
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The bottom line

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An Eldoret court paused execution of a land judgment pending appeal, but warned that filing an appeal alone never stops enforcement.

What this practically means

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Executive summary

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The 1st and 2nd defendants, who had been ordered in a judgment dated 1.3.2017 to vacate the suit land within 30 days, applied for stay of execution of the judgment and decree pending an intended appeal to the Court of Appeal. The application was supported by the affidavit of Dr. Richard E. Ndubai, Director General of the National Youth Service, who asserted that the land was a prime public utility, that the state stood to suffer substantial loss through forced eviction and destruction of structures, and that the application was brought expeditiously. The plaintiff/decree holder opposed, arguing the threshold for stay was not met and that the decree holder should enjoy the fruits of judgment. The court, citing Order 42 Rule 6 of the Civil Procedure Rules and applying James Wangalwa v Cheseto and Winfred Nyawira Maina v Onyiego Gichana, examined the conditions of substantial loss, unreasonable delay and security. It found the application filed 3 days before expiry of the 30-day stay, hence without inordinate delay. On substantial loss, it found that although the 2nd defendant had substantially developed 3.5 ha of the disputed land, that developed portion was not claimed by the plaintiff and execution would not affect it. Nevertheless, exercising its discretion in public interest and the interest of justice, the court granted a stay of execution pending appeal and ordered both parties not to interfere with Eldoret/Municipality Block 15/2089 by disposing, alienating or constructing on it pending appeal. Costs of the application were to be in the appeal. Delivered at Eldoret on 17 April 2018 by A. Ombwayo, J.

Key legal issues

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01

Whether the applicants established substantial loss

Holding

The court found substantial loss not established in practical effect because the developed 3.5 ha is not claimed by the respondents and would not be affected by execution.

Reasoning

The court accepted that the 2nd defendant had substantially developed 3.5 ha of the disputed land, as evidenced by photographs annexed to the application. However, the plaintiff's counsel argued, and the court found, that the developed portion is on land owned by the defendants and not claimed by the plaintiff; the plaintiff's land is vacant. Therefore execution of the decree would not affect the developed portion, undercutting the substantial loss claim.

p. 2
02

Whether the application was filed without unreasonable delay

Holding

The court found the applicants came to court without inordinate delay, having filed the application 3 days before lapse of the 30-day stay granted by the court.

Reasoning

The judgment was delivered on 1.3.2017 with a 30-day vacation period. The notice of appeal was filed in time and the stay application was lodged 3 days before expiry of the 30 days. Relying on the principle that delay depends on surrounding circumstances and that a prudent suitor applies before expiry of the period to vacate, the court held the application timely. The respondent's claim of inordinate delay failed.

p. 2

Legal principles established

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  • Filing of an appeal alone does not operate as a stay of execution; the applicant must show substantial loss, no unreasonable delay, and security.
  • Execution itself, even if levied, does not amount to substantial loss; the applicant must show irreparable harm to the essential core of the successful party.
  • Unreasonable delay is assessed on the circumstances of each case; a stay application should be brought before expiry of the period given to vacate.

Court orders

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  1. 1.Stay of execution pending appeal granted in public interest and interest of justice
  2. 2.Both parties ordered not to interfere with and/or deal with Eldoret/Municipality Block 15/2089 by disposing, alienating or constructing on the same pending hearing and determination of appeal
  3. 3.Costs of the application be in the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (5)

  • James Wangalwa & Another v Agnes Naliaka Cheseto
    Misc Application No 42 of 2011 [2012] eKLR
  • Silverstein v Chesoni
    [2002] 1 KLR 867
  • Mukuma v Abuoga
  • Christopher Kendagor v Christopher Kipkorir
    Eldoret E&LC 919 of 2012
  • Winfred Nyawira Maina v Peterson Onyiego Gichana
    [2015] eKLR
Jurisdiction invoked
Order 42 Rule 6 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, "Abdi Adam Hussein & 2 others v Attorney General & 2 others [2018] KEELC 3371 (KLR)", Case Analysis (2018). Application dated 27.3.2017 and 19.4.2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3371/eng@2018-04-17

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