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ELCAllowedNot stated in judgment (Notice of Motion dated 17/11/2017)· [2018] KEELC 3672 (KLR)

William Osimata Emasete & another v County Government of Busia [2018] KEELC 3672 (KLR)

Environment and Land Court
11 April 2018
1,641 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court paused execution of a judgment requiring land restoration, because enforcing it would have demolished buildings before an appeal could be heard.

What this practically means

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Executive summary

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The County Government of Busia, the Defendant in a trespass suit over land parcel Mundika/Bukhayo/329, applied by Notice of Motion dated 17/11/2017 for stay of execution of the judgment of Hon. Justice Kaniaru delivered on 18/10/2017, which granted the Plaintiffs a permanent injunction, restoration of the land to its previous state, costs and interest. The application was brought under Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, supported by grounds that the Applicant intended to appeal, that enforcement would entail demolition of structures causing substantial loss, and that the Applicant could compensate the Respondents if unsuccessful. The Respondents opposed, contending that the conditions for stay were unmet, no security had been offered, the court lacked jurisdiction, and the application was res judicata and abusive. The court held that two conditions govern stay under Order 42 Rule 6: substantial loss and security. It found substantial loss established because restoration of the land would necessarily require demolition of the Applicant's structures, rendering the intended appeal nugatory if successful. The court rejected the jurisdictional objection, holding Order 42 expressly confers jurisdiction on the trial court to stay its own judgment. It relaxed the security requirement, noting the decree was non-monetary and there was no threat to the land. The application was allowed in terms of prayer 3; costs were ordered to be in the cause.

Key legal issues

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01

Whether the Applicant demonstrated substantial loss justifying a stay

Holding

Yes - demolition of the structures and the cost of restoring the land if the appeal succeeds amounts to substantial loss

Reasoning

The court reasoned that the judgment required restoration of the land to its state before the Defendant's occupation, which would necessarily entail demolition of structures erected by the Applicant. If the appeal succeeded, the Applicant would lose the buildings and incur restoration expenditure, and the Respondents had not shown ability to put up such structures. Maintaining the status quo pending appeal therefore required the stay to be granted.

p. 2
02

Whether the requirement of security should be enforced

Holding

The security requirement was relaxed because the decree is non-monetary and there is no threat to the land

Reasoning

The court observed that the likely decree was not monetary and the land was not intended to be sold, so the Respondents' failure to identify what security was required weakened their position. The Applicant had evinced willingness to comply with any condition and had capacity to compensate. The court invoked its mandate to ensure a just and proportionate resolution and relaxed the security requirement.

p. 3
03

Whether the court has jurisdiction to stay its own judgment

Holding

Yes - jurisdiction is expressly conferred by Order 42 Rule 6

Reasoning

The Respondents argued the court could not sit on appeal over its own judgment and was being asked to stay what it never ordered. The court rejected both objections, holding that Order 42 expressly confers jurisdiction on the trial court, and that an order of restoration of land necessarily implies demolition of structures erected after occupation.

p. 2

Legal principles established

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  • Under Order 42 Rule 6, the grant of a stay requires demonstration of substantial loss and provision of sufficient security.
  • The requirement of security under Order 42 Rule 6 may be relaxed where the decree is not monetary and there is no threat to the land in dispute.
  • A trial court has jurisdiction under Order 42 Rule 6 to stay execution of its own judgment.

Court orders

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  1. 1.Stay of execution of the judgment of Hon. Justice Kaniaru dated 18/10/2017 and the orders therein, pending the hearing and final determination of the intended appeal
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (5)

  • Ismael Kagunyi Thande v Housing Finance Company Limited
    HCC Civil Application No. 156 of 2006
  • Reliance Bank Limited (in liquidation) v Norlake Investment Ltd
    HCC Civil Application No. 93 of 2002
  • Governors Balloon Safaris Ltd v Skyship Company Ltd & Another
    CA Civil Application No. 32 of 2015, Nairobi
  • AB & Another v RB
    CA Civil Application No. 4 of 2016, Malindi
  • Republic v The Commissioner for Investigation & Enforcement, Exparte Wananchi Group Kenya Limited
    HCC Misc. Application No. 51 of 2013, Nairobi
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21)

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, "William Osimata Emasete & another v County Government of Busia [2018] KEELC 3672 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 17/11/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3672/eng@2018-04-11

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