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ELCDismissedEngineer SPMELC Appeal arising from Engineer SPMELC Case No. 34 of 2018· [2019] KEELC 2509 (KLR)

Jeremiah Thuku Nganga & another v John Waithaka Aidan [2019] KEELC 2509 (KLR)

Environment and Land Court
9 July 2019
MOM.C. Oundo
2,510 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to pause execution of an injunction because the applicants proved only one of three required conditions.

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 Nyahururu (M.C. Oundo J) on a Notice of Motion dated 5th April 2019 by the Applicants/Appellants seeking a stay of execution of an injunction order issued on 26th March 2019 by the Senior Principal Magistrate's Court at Engineer in Engineer SPMELC Case No. 34 of 2018. The trial court had issued a temporary injunction restraining the Applicants from interfering with disputed land lying between parcels Nyandarua/Kitiri/515 and 345 pending determination of a boundary dispute. The Applicants argued the parcel 515 had been subdivided and transferred to third parties before the suit was filed, that the injunction could not issue over non-existent properties, and that execution would lead to their eviction from 12 acres they had occupied since 1964, rendering their appeal nugatory. The Respondent countered that the dispute was a boundary dispute, that the claimed subdivision lacked evidential support, and that the photographs relied upon were unreliable. The court identified the three cumulative conditions under Order 42 Rule 6(2): substantial loss, absence of undue delay, and provision of security. It held that although the application was filed timeously, the Applicants failed to demonstrate substantial loss because the injunction was prohibitory and did not order their eviction, and they had furnished no security. Applying Mukuma v Abuoga on the meaning of substantial loss, and invoking the court's inherent jurisdiction under Section 3A of the Civil Procedure Act, the court dismissed the application with costs and directed the Appellants to lodge their appeal within 14 days and file the record of appeal within 45 days thereafter.

Key legal issues

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01

Substantial loss

Holding

No substantial loss demonstrated because the impugned order was a prohibitory injunction, not an eviction order

Reasoning

The trial court's ruling issued a temporary injunction restraining interference with the disputed land; it did not restrain the Applicants from occupying or living on the suit property. To stop occupation would have required a clear and specific prayer for a mandatory injunction. Since the Applicants were in possession at the time of the injunction application and the order did not connote eviction, no substantial loss was shown.

p. 3
02

Security

Holding

The Applicants furnished no security, a mandatory legal requirement under Order 42 Rule 6(2)(b)

Reasoning

The Respondent submitted that no security had been furnished or offered for the grant of the stay order. The court found this to be a mandatory legal requirement and that the Applicants had not complied. Combined with failure on the substantial-loss condition, the application could not succeed.

p. 3
03

Delay

Holding

The application was filed without undue delay, satisfying the second condition

Reasoning

The ruling was delivered on 26th March 2019 and the application for stay was filed on 5th April 2019, less than ten days later. The court found the application was brought without undue delay, though this alone could not save it given failure of the other two cumulative conditions.

p. 3

Legal principles established

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  • The three conditions for granting a stay of execution pending appeal under Order 42 Rule 6(2) cannot be severed; all three must be met simultaneously
  • Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory

Court orders

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  1. 1.The Appellant/Applicants' Notice of Motion dated 5th April 2019 is denied and dismissed with costs to the Respondent
  2. 2.The Appellant/Applicants shall lodge their Appeal against the decree of the lower Court within 14 days from the date of the ruling
  3. 3.Upon filing of the memorandum of Appeal, the Applicant shall prepare, file and serve their record of appeal within 45 days

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 42 Rule 6(1), 6(2)(a), 6(2)(b)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 43(1)(ii)

Cases cited (1)

  • Mukuma V Abuoga
    (1988) KLR 645
On appeal from
Senior Principal Magistrate's ELRC Court, Engineer
Engineer SPMELC Case No. 34 of 2018
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1 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, "Jeremiah Thuku Nganga & another v John Waithaka Aidan [2019] KEELC 2509 (KLR)", Case Analysis (2019). Engineer SPMELC Appeal arising from Engineer SPMELC Case No. 34 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2509/eng@2019-07-09

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