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ELCAllowedNotice of motion dated 11th July 2017 (in the suit whose judgment and decree were issued on 5th October 2016)· [2018] KEELC 3614 (KLR)

Edith Wangari Wanduna v Joseph Kinyua Mukiri & another [2018] KEELC 3614 (KLR)

Environment and Land Court
5 April 2018
1,011 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nyeri court stopped the cancellation of two land titles pending appeal, even though the application was filed nine months late, because title cancellation would cause serious loss.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Nyeri (L N Waithaka, J) on a notice of motion dated 11th July 2017 in which Joseph Kinyua Muriuki and Christopher Gathua Mukiri, the applicants/defendants, sought a stay of execution of the judgment and decree issued by the court on 5th October 2016 pending an intended appeal. They argued the application was filed without delay, that an appeal had been filed, and that the respondents had secretly extracted the decree and served it on the Land Registrar Nyeri to cancel their titles over parcels Kirimukuyu/Ngandu/615 and 616, which would render the appeal nugatory and cause substantial loss. The plaintiff opposed through grounds of opposition, contending the application was frivolous, vexatious, an afterthought filed nine months after the decree, and that no arguable appeal was demonstrated. Counsel made oral submissions along the same lines. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and the Kenya Shell case, the court held that substantial loss was demonstrated because the decree had already been extracted and presented for cancellation of the applicants' titles, and that the applicants were willing to offer security. Although the court found the nine-month delay inordinate and unexplained, it nonetheless allowed the application on conditions: deposit of Kshs. 300,000/= in an interest-bearing account in the joint names of the parties' advocates within 40 days, and filing of an undertaking to prosecute the appeal without unreasonable delay within 21 days. No costs order was recorded.

Key legal issues

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01

Substantial loss

Holding

Substantial loss demonstrated because the decree had been extracted and presented to the Land Registrar for cancellation of the applicants' titles, risking the appeal being rendered nugatory.

Reasoning

The applicants showed that the decree had already been extracted and served on the Land Registrar Nyeri to cancel titles for parcels Kirimukuyu/Ngandu/615 and 616. Without an order stopping cancellation, nothing would prevent the Registrar from cancelling the titles and issuing new ones to the plaintiff before the appeal was heard, rendering the appeal nugatory.

p. 2
02

Reasonable delay

Holding

The court found inordinate delay - the application was filed about nine months after the decree was issued, with no explanation - yet still allowed the application.

Reasoning

The application was filed on 12th July 2017, roughly nine months after the decree. The court agreed with the respondent that the delay was inordinate and unexplained, but ultimately allowed the application anyway on the basis of demonstrated substantial loss and willingness to offer security, subject to conditions.

p. 2
03

Security

Holding

The applicants' willingness to abide by any order for security satisfied this condition; the court imposed a deposit of Kshs. 300,000/= as the security.

Reasoning

The applicants indicated willingness to comply with any security conditions. The court exercised its discretion to allow the application conditional upon a deposit of Kshs. 300,000/= in an interest-bearing account in the joint names of the parties' advocates, plus an undertaking to prosecute the appeal without unreasonable delay.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone of the court's jurisdiction to grant a stay of execution.
  • A stay may issue where the applicant demonstrates substantial loss, absence of unreasonable delay, and offers security; delay may be excused where loss and security are established.

Court orders

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  1. 1.Stay of execution of the judgment and decree issued on 5th October 2016 granted on condition that the applicants shall, within 40 days from the date of the ruling, deposit in an interest-bearing account to be opened in the name of the advocates of the parties the sum of Kshs. 300,000/=
  2. 2.The applicants shall, within twenty one days from the date of the ruling, file an undertaking to prosecute the appeal filed herein without unreasonable delay

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 41 Rule 4 (as referenced in the quoted passage from Kenya Shell Limited)

Cases cited (1)

  • Kenya Shell Limited vs. Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) 1 KAR 1018
Jurisdiction invoked
Order 42 Rule 6(2) 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, "Edith Wangari Wanduna v Joseph Kinyua Mukiri & another [2018] KEELC 3614 (KLR)", Case Analysis (2018). Notice of motion dated 11th July 2017 (in the suit whose judgment and decree were issued on 5th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3614/eng@2018-04-05

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