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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 1529 (KLR)

Antony Ted Andrew Hoareau v Mary Muthoni Wanjohi [2019] KEELC 1529 (KLR)

Environment and Land Court
30 September 2019
MSMunyao Sila
867 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Nakuru land court paused enforcement of a judgment cancelling someone's land title, but only if she leaves the land untouched until the appeal ends.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Nakuru on a notice of motion dated 3 January 2019 by the unsuccessful defendant seeking stay of execution of the judgment delivered on 20 November 2018, pending an appeal to the Court of Appeal. The underlying suit concerned land parcel Naivasha/Mwichiringiri Block 5/595, which the plaintiff claimed to have purchased from Stephen Mwangi Wangethi through transfer instruments entrusted to an agent, James Kariuki Kiongo, who instead fraudulently transferred the land to the defendant. The court had found the agent a fraudster, cancelled the defendant's title, directed that it revert to Wangethi, and ordered the defendant to vacate within 14 days. Applying Order 42 Rule 6(2) of the Civil Procedure Rules, the court identified three elements: absence of unreasonable delay, substantial loss, and security. It found the application filed within about six weeks of judgment, hence without unreasonable delay. On substantial loss, it accepted the risk that once title reverted to Wangethi he might dispose of the land, rendering any successful appeal nugatory. As to security, the court treated the applicant's continued possession of the vacant, undeveloped land as sufficient, conditional on her not erecting structures, planting permanent crops, or disposing of the land in any way. An order of inhibition was also issued against registration of any disposition on the register pending appeal. Costs of the application were ordered to abide the costs of the appeal.

Key legal issues

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01

Whether the application was filed without unreasonable delay

Holding

Filed without unreasonable delay

Reasoning

Judgment was delivered on 20 November 2018 and the application was filed on 4 January 2019, which the court considered a short interval. The applicant had also lodged a Notice of Appeal before filing the application, demonstrating diligence in pursuing her right of appeal.

p. 2
02

Whether the applicant would suffer substantial loss if stay is denied

Holding

Substantial loss established as the title may be disposed of pending appeal

Reasoning

The decree cancels the applicant's title and the land would revert to the previous proprietor, who might dispose of it. If that happens and the applicant succeeds on appeal, the appeal would be rendered academic since the land may no longer be available.

p. 2
03

Whether security for due performance of the decree was furnished

Holding

The applicant's possession and preservation of the vacant land sufficed as security, subject to conditions

Reasoning

The land is vacant and undeveloped and in the applicant's possession. The court treated preservation of that status as effective security, imposing conditions against development or disposition and an inhibition on the register rather than requiring monetary security.

p. 2

Legal principles established

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  • The three elements for stay of execution pending appeal under Order 42 Rule 6 are absence of unreasonable delay, substantial loss, and furnishing of security
  • Substantial loss is established where the subject land may be disposed of pending appeal, rendering the appeal nugatory

Court orders

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  1. 1.Stay of execution of the judgment delivered on 20 November 2018 pending hearing and determination of the appeal to the Court of Appeal
  2. 2.Applicant directed not to erect any structures or plant any permanent crops on the land
  3. 3.Applicant barred from selling, charging, leasing or otherwise disposing of the land
  4. 4.Order of inhibition against registration of any disposition in the register of the suit land pending appeal
  5. 5.Costs of the application to abide the costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 (2)
Jurisdiction invoked
Order 42 Rule 6 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, "Antony Ted Andrew Hoareau v Mary Muthoni Wanjohi [2019] KEELC 1529 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1529/eng@2019-09-30

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