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ELCPartially AllowedELC Appeal No. 11 of 2019· [2019] KEELC 1288 (KLR)

Susan Muthoni Ndege v Catherine Karimi Kamau & 2 others [2019] KEELC 1288 (KLR)

Environment and Land Court
4 October 2019
855 words in judgment
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The bottom line

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A Kenyan landowner who lost at the magistrate's court won a twelve-month freeze on execution of the judgment while pursuing an appeal.

What this practically means

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Executive summary

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The appellant/applicant filed a Notice of Motion dated 10th June 2019 under Order 51 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking stay of execution of the judgment and decree of Hon. E.O. Wambo – SRM in Kerugoya ELC Case No. 146 of 2018 delivered on 16th May 2019, both pending the inter-partes hearing of the application and pending the hearing and determination of ELC Appeal No. 11 of 2019. The applicant argued that the appeal was arguable with high chances of success, that it would be rendered nugatory without stay, and offered to abide by conditions. The respondents, by replying affidavit sworn 19th August 2019, contended that no irreparable loss had been demonstrated and that the application was designed to deny them the fruits of a successful judgment. The court, E.C. Cherono, ELC Judge, applied the three conditions in Order 42 Rule 6(2): substantial loss, absence of unreasonable delay, and security. It found that if the suit property is ancestral land and is sold to a third party in execution, the applicant would suffer irreparable loss not compensable by damages; that filing within less than 30 days of judgment was not inordinate; and that the applicant's undertaking to comply with conditions satisfied the security requirement. The application was allowed: stay of execution was granted for a limited period of twelve months only, and costs of the application were ordered to abide the appeal. Judgment delivered at Kerugoya on 4th October 2019.

Key legal issues

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01

Substantial loss / irreparable harm

Holding

Satisfied - applicant would suffer irreparable loss not compensable by damages if ancestral land is disposed of to a third party

Reasoning

The court accepted the applicant's claim that the suit property is ancestral land. If executed upon and sold to a third party, land with ancestral attachment cannot be replaced by an equivalent; damages would be inadequate. This satisfied the substantial-loss limb of Order 42 Rule 6(2)(a).

p. 2
02

Unreasonable delay

Holding

Satisfied - application filed on 10th June 2019, less than one month after the judgment of 16th May 2019

Reasoning

The court measured the interval between delivery of judgment (16 May 2019) and filing of the application (10 June 2019), found it under 30 days and held that such a period was not inordinate in the circumstances, satisfying the second limb of Order 42 Rule 6(2)(a).

p. 2
03

Security for due performance of the decree

Holding

Satisfied by the applicant's undertaking to comply with any conditions the court imposes

Reasoning

The applicant had offered to abide by any conditions for due performance of the decree. The court accepted this undertaking as demonstrating willingness to comply, treating it as satisfying the security requirement under Order 42 Rule 6(2)(b).

p. 2

Legal principles established

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  • An application for stay pending appeal under Order 42 Rule 6(2) requires the court to balance the rights of the successful litigant against those of the unsuccessful litigant exercising the right of appeal
  • Where suit land is alleged ancestral land, execution leading to disposal to a third party may cause irreparable loss not compensable by damages
  • A filing delay of less than 30 days after judgment is not inordinate delay

Court orders

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  1. 1.An order of stay of execution of the Judgment/Decree of Hon. E.O. Wambo – SRM in ELC Case No. 146/2018 (Kerugoya) for a period of twelve (12) months only
  2. 2.The costs of the application to abide the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6 (and sub-rule 2)
  • Civil Procedure ActSections 1A, 1B & 3A
On appeal from
Senior Resident Magistrate's Court, Kerugoya
ELC Case No. 146 of 2018
Jurisdiction invoked
Order 42 Rule 6 CPR; Sections 1A, 1B & 3A CPA; Order 51 Rule 1 CPR (appellate/stay jurisdiction of the ELC over appeals from subordinate courts)

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, "Susan Muthoni Ndege v Catherine Karimi Kamau & 2 others [2019] KEELC 1288 (KLR)", Case Analysis (2019). ELC Appeal No. 11 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1288/eng@2019-10-04

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