Hadija Haji Galma v Abdi Ahmed Kawir [2019] KEELC 2537 (KLR)
The bottom line
#A Kenyan court paused eviction from disputed Isiolo land for one year, showing courts will protect families living on land while an appeal is decided.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
Applicant in occupation of the suit land with children and grandchildren, an averment not rebutted, satisfies the substantial loss criterion.
The court noted there was no dispute that the applicant occupies the suit land. She avers she is elderly and lives there with children and grandchildren; the respondent did not rebut this. The court found the authorities cited on substantial loss relevant and concluded that eviction would cause her substantial loss.
Unreasonable delay
A lapse of two months and seven days between judgment and application was a delay but not unreasonable.
Judgment was delivered on 13.12.2018 and the application filed on 20.2.2019, a lapse of two months and seven days. Though significant, the court exercised its discretion to find the delay not unreasonable, particularly given the memorandum and record of appeal had been filed and the appeal was ready for hearing.
Security
The applicant's offer to deposit Kshs.70,000 satisfied the security criterion.
Order 42 rule 6(2) requires the applicant to furnish such security as the court orders for due performance of the decree. The applicant offered to deposit Kshs.70,000, which the court accepted, making it a condition of the stay within 30 days.
Legal principles established
#- Stay of execution pending appeal is discretionary and requires substantial loss, no unreasonable delay, and security under Order 42 rule 6(2).
- Substantial loss requires the applicant to establish a state of affairs that will irreparably affect the successful party's core interest in the decree.
Court orders
#- 1.Stay of execution of the judgment and decree in Isiolo CM ELC No. 30 of 2011 granted for a period of one year
- 2.Applicant to deposit Kshs.70,000 as security in court within 30 days, failing which the stay shall lapse
- 3.Costs of the application to abide the outcome of the appeal
- On appeal from
- Isiolo Chief Magistrate's Court (Environment and Land)
- Isiolo CM ELC No. 30 of 2011
- Jurisdiction invoked
- Sections 1A and 3A of the Civil Procedure Act; Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hadija Haji Galma v Abdi Ahmed Kawir [2019] KEELC 2537 (KLR)", Case Analysis (2019). Not stated in judgment (application dated 15.2.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2537/eng@2019-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.