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ELCAllowedNot stated in judgment (application dated 5 March 2019)· [2019] KEELC 1963 (KLR)

James Njoroge Gitau v Lucy Chepkurui [2019] KEELC 1963 (KLR)

Environment and Land Court
24 July 2019
1,181 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner can stay eviction while appealing, but must pay money into court as security and not touch the land.

What this practically means

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Executive summary

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This was a ruling on an application dated 5 March 2019 by the unsuccessful defendant (applicant), seeking stay of execution of judgment pending appeal to the Court of Appeal. The underlying suit, filed on 13 June 2008 by the respondent, concerned ownership of land parcel Dundori/Muguathi Block 2/7 (Koelel), whose title had been issued to Micah Kipchumba Chumo, whose estate the applicant represents. The court had found the respondent the rightful proprietor, ordered cancellation of the applicant's title and given her six months to vacate. The respondent opposed stay, asserting a successful litigant's right to the fruits of judgment, alleging bad faith (subdivision during the suit), and contending no substantial loss had been shown since the applicant could be restored to possession if successful on appeal. Applying Order 42 Rule 6(2), the court identified three elements: absence of unreasonable delay, substantial loss, and security. It found the four-month delay not unreasonable given the six-month vacation period; found substantial loss because the applicant had lived on the land for a considerable time (over 40 years by her account) and would face the cost of alternative accommodation; and ordered security of Kshs. 360,000/= plus taxed costs, to be deposited in a joint interest-earning account within 30 days, refundable considerations balanced. Both parties were restrained from dealing with the land/title; the applicant was permitted seasonal crops and livestock. Costs of the application abide the appeal. Stay was granted on conditions.

Key legal issues

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01

Unreasonable delay

Holding

Four months' delay was not unreasonable given the court had given the applicant six months to vacate.

Reasoning

Counsel for the respondent questioned the filing of the application four months after judgment. The court acknowledged some delay but held it could not be quantified as unreasonable in the circumstances, since the judgment itself had allowed the applicant six months to vacate the suit land.

p. 2
02

Substantial loss

Holding

The applicant's long residence on the land meant eviction pending appeal would cause her substantial loss.

Reasoning

The applicant had been resident on the suit land for a considerable time, which emerged during the proceedings and informed the six-month vacation period. Being forced to leave and find alternative accommodation would cause substantial loss. The court balanced this against the successful litigant's right to enjoy the judgment and compensated the respondent by ordering a money deposit as security.

p. 2
03

Security for due performance of the decree

Holding

Security of Kshs. 360,000/= plus taxed costs, in a joint interest-earning account, adequately compensates the respondent.

Reasoning

Taking into account the size of the land, its user, the average duration of hearing appeals and all other circumstances, the court fixed Kshs. 360,000/= as adequate security. It directed deposit into a joint interest-earning account within 30 days, with taxed costs likewise deposited within 30 days of taxation, and release to the respondent if the appeal fails.

p. 2

Legal principles established

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  • An applicant for stay pending appeal must show no unreasonable delay, substantial loss, and provide security for due performance of the decree.
  • Possession of the suit property by the unsuccessful litigant can constitute substantial loss justifying stay, balanced against the successful litigant's right to enjoy the fruits of judgment.

Court orders

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  1. 1.Stay of execution of the judgment pending appeal granted on conditions
  2. 2.Applicant to deposit Kshs. 360,000/= as security in a joint interest-earning account within 30 days
  3. 3.Taxed costs to be deposited in the same joint interest-earning account within 30 days of taxation
  4. 4.If the applicant fails in her appeal, the money deposited to be released to the respondent
  5. 5.Applicant barred from selling, leasing, charging or otherwise dealing with the property or ceding possession, and from developing structures or undertaking permanent agricultural activities, but at liberty to plant seasonal crops and keep livestock
  6. 6.Respondent barred from selling, charging or otherwise dealing with the title to the suit land
  7. 7.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(2) of the Civil Procedure Rules (application for stay of execution pending appeal to the Court of Appeal)

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, "James Njoroge Gitau v Lucy Chepkurui [2019] KEELC 1963 (KLR)", Case Analysis (2019). Not stated in judgment (application dated 5 March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1963/eng@2019-07-24

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