Josephat Gacheru Rugiri v Amos Kibata Gicheko & another [2018] KEELC 4545 (KLR)
The bottom line
#A Kenyan land buyer who evicted an occupant not named in his case lost both his stay application and paid costs, and the evicted occupant was restored to the property.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant satisfied the principles for stay of execution under Order 42 Rule 6(2)
The Appellant failed to demonstrate substantial loss; he was never in possession, no security was offered, and any prejudice was compensable by costs or damages
The court applied the three principles in Order 42 Rule 6(2): substantial loss, absence of unreasonable delay, and security. Although the application was filed timeously, the Appellant was never in possession of the suit property and attached no sale agreement or title, while the 2nd Respondent had been in long occupation. Reinstatement of the position prevailing before the evictions caused the Appellant no substantial loss; the 2nd Respondent would suffer loss if the stay were allowed.
Whether eviction orders could lawfully be executed against the 2nd Respondent, who was not a party to the suit
The eviction was unlawful because the 2nd Respondent was in actual possession but was not a party to the suit and received no notice under Section 152e of the Land Act
The 1st Respondent had himself filed ELC No. 1363 of 2013 seeking vacant possession from the 2nd Respondent, showing he was not in possession. The Appellant's eviction orders in CMCC No. 6798 of 2016 were obtained against the 1st Respondent in his absence, but the person in possession was the 2nd Respondent, who was neither joined nor served with the statutory notice. Execution against her was therefore carried out on a non-party.
Whether the status quo should be restored pending the appeal
The status quo was that the 2nd Respondent was in possession before the purported purchase and filing of suit, and that position should be maintained until the appeal is determined
The eviction order had been vacated upon the Appellant's withdrawal of the suit, reinstating the prior position. The alternative injunction sought by the Appellant would effectively evict the 2nd Respondent before the appeal was heard. The court held that the pre-eviction position — the 2nd Respondent's possession and occupation — should remain until the appeal is heard and determined.
Whether the Appellant should be cited for contempt
The prayer failed; the material was insufficient to prove contempt to the required criminal standard of beyond reasonable doubt
The court adopted the authority of Mary Wamaitha Makumi v Phylis Nduta Ngugi that contempt, being akin to a criminal offence attracting penal consequences, must be strictly proved beyond reasonable doubt, including knowledge and intention to disobey. On the affidavits and rival accounts (including the claim that an electrical fault caused the fire), the material presented did not meet that threshold at that juncture.
Legal principles established
#- A party evicted under orders in a suit to which they were not a party must be given the mandatory notice stipulated by Section 152e of the Land Act
- Stay of execution pending appeal requires substantial loss, absence of unreasonable delay and security, and the discretion must be exercised judicially so as not to render a successful appeal nugatory
- Contempt of court being akin to a criminal offence with penal consequences, the standard of proof is beyond reasonable doubt
Court orders
#- 1.The Appellant's prayer for stay of the order issued on 1st November 2016 disallowed; the Notice of Motion dated 2nd November 2016 dismissed entirely with costs in the cause
- 2.The 2nd Respondent's Notice of Motion dated 8th November 2016 allowed entirely in terms of prayers No. 2, 3 and 4, with costs of the application to be met by the Appellant and the 1st Respondent
- 3.The 2nd Respondent restored and reinstated to the suit property pending the hearing and determination of the appeal
- 4.The order of status quo previously in force vacated and replaced by the orders allowed in the Notice of Motion dated 8th November 2016
- 5.The prayer to cite the Appellant for contempt of court declined
- On appeal from
- Chief Magistrate's Court, Milimani
- CMCC No. 6798 of 2016
- Jurisdiction invoked
- Appellate jurisdiction over orders of the subordinate court (stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephat Gacheru Rugiri v Amos Kibata Gicheko & another [2018] KEELC 4545 (KLR)", Case Analysis (2018). Milimani CMCC No. 6798 of 2016 (Appeal) - Notice of Motion dated 2nd November 2016 and Notice of Motion dated 8th November 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4545/eng@2018-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.