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ELCDismissedNot stated in judgment (application dated 30/8/2019 filed 3/9/2019 in ELC suit, Kitale)· [2019] KEELC 526 (KLR)

Caleb Minjire Wambugu v Isaiah Kavulafu & another [2019] KEELC 526 (KLR)

Environment and Land Court (High Court)
27 November 2019
1,706 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Kitale Environment and Land Court refused to pause execution of a land judgment because the losing group had their own plot to move to and offered useless security.

What this practically means

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Executive summary

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This is a ruling of the High Court (Environment and Land Court) at Kitale, delivered by Mwangi Njoroge J on 27 November 2019, on the defendants' notice of motion dated 30 August 2019 seeking stay of execution of the court's judgment of 18 July 2019, by which the court found for the plaintiff and identified the defendants as trespassers on Plot No. Kaplamai/Kachibora Block 3/Muhuti/109 pending an intended appeal. The application was brought under Sections 3A and 63(e) of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and Articles 50 and 159 of the Constitution. The applicants relied on their own surveyor's report, alleged possible chaos on the ground if they were moved, and offered to deposit their title to the adjoining Plot No. 110 in court as security. The plaintiff/respondent relied on the County Surveyor's report confirming the location of plot 109 and that the defendants occupy it. The court deemed the appeal filed upon notice of appeal given on 31/7/2019, found the application lodged timeously (46 days after judgment), but held that no substantial loss was established because the defendants' own plot (No. 110) exists on the ground, in the register and on the Registry Index Map, so they could simply move to it. The claim of disruption was discounted because no other affected party was enjoined. The offered title was held to be worthless as security since it was never in dispute. The application was dismissed with costs to the plaintiff/respondent.

Key legal issues

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01

Substantial loss

Holding

No substantial loss established

Reasoning

The court found the defendants were identified as trespassers on plot 109 by expert evidence of the County Surveyor, and that plot 110 belonging to their group exists on the ground, in the register and on the Registry Index Map. Unlike a double-allocation case, moving the defendants would not leave them destitute; they would simply occupy their own plot. The failure to enjoin other affected parties undermined the claim of chaos on the ground.

p. 2
02

Unreasonable delay

Holding

Application lodged timeously

Reasoning

Judgment was delivered on 18/7/2019 and the application lodged on 3/9/2019, a gap of 46 days, which the court considered less than two months and therefore timeous under Order 42 Rule 6(2)(a).

p. 2
03

Security

Holding

Offer of depositing the defendants' own title was inadequate security

Reasoning

The defendants' title to plot 110 was never challenged in the suit; the dispute concerned occupation of plot 109. Deposit of an undisputed title would not compensate the plaintiff for continued denial of possession, so the security condition of Order 42 Rule 6(2)(b) was not satisfied.

p. 3

Legal principles established

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  • An appeal is deemed filed for purposes of Order 42 Rule 6 upon giving of notice of appeal
  • Substantial loss is not established where the applicant holds a separate existing plot and merely must vacate land found to belong to the respondent
  • Offering one's own undisputed title as security for a stay is inadequate where that title was never challenged in the suit

Court orders

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  1. 1.The application dated 30/8/2019 is dismissed
  2. 2.Costs of the application awarded to the plaintiff/respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure Rules 2010Order 42 Rule 6
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159

Cases cited (4)

  • Bashir Godana -vs Fatuma Godana Tupi
    [2018] eKLR
  • Sammy Some Kosgei -vs- Grace Jelel Boit
    [2013] eKLR
  • David Oyiare Ntungani -vs- Matuiya ole Naisuaku Orket
    [2017] eKLR
  • Reliance bank -vs- Norlake Investments
    [2002] 1 EA 227
Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010; Articles 50 and 159 of the Constitution of Kenya

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, "Caleb Minjire Wambugu v Isaiah Kavulafu & another [2019] KEELC 526 (KLR)", Case Analysis (2019). Not stated in judgment (application dated 30/8/2019 filed 3/9/2019 in ELC suit, Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/526/eng@2019-11-27

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