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ELCDismissedNotice of Motion dated 11th February 2019 (Bungoma)· [2019] KEELC 3398 (KLR)

Charles Odhiambo Kasera & another v Salome Nafula Richard [2019] KEELC 3398 (KLR)

High Court of Kenya (presumably Environment and Land Court, Bungoma)
9 May 2019
1,827 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to halt enforcement of a judgment and protect land title, because the applicants waited a year and showed no real risk of harm.

What this practically means

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Executive summary

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This ruling by Boaz N. Olao J at Bungoma disposed of the 1st and 2nd Plaintiffs/Applicants' Notice of Motion dated 11th February 2019, which sought a stay of execution of the decree pending the hearing and determination of Kisumu Court of Appeal Civil Appeal No. 52 of 2018, together with a temporary injunction restraining the Defendant/Respondent from leasing, transferring or disposing of land parcel E. BUKUSU/S. KANDUYI/4147. The application, brought under Order 42 Rule 6 and Order 40 Rules 1 and 2 of the Civil Procedure Rules and Sections 1, 1B, 3 and 3A of the Civil Procedure Act, was unopposed, the Defendant and her counsel being absent on the hearing date. The Court nonetheless examined it on the merits. On stay, the Judge found the application filed one year after the judgment of Mukunya J of 27th February 2018 with no explanation, hence unreasonably delayed. Further, the Applicants had not demonstrated substantial loss: their title to the suit land remains registered in their names and uncancelled, and the underlying judgment dismissed their eviction claim while declaring their registration irregular, illegal and unlawful without cancelling the title. Citing Western College of Arts & Applied Sciences v Oranga, the Court held that Mukunya J granted only a negative order incapable of execution save as to costs, which cannot be stayed. On injunction, applying Giella v Cassman Brown and Patricia Njeri v National Museum of Kenya, the Court found the claim of prospective dealings by the Defendant to be mere apprehension unsupported by concrete evidence, since the Defendant could not dispose of land registered in the Applicants' names without the title. Both prayers failed and the Notice of Motion was dismissed with no order as to costs.

Key legal issues

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01

Stay of execution pending appeal

Holding

Refused; the Applicants failed to establish sufficient cause, substantial loss, absence of unreasonable delay and security

Reasoning

The judgment under appeal dismissed the Applicants' eviction suit and granted only a negative order which cannot be stayed. Further, the application was filed one year after judgment with no explanation for the delay, and the Applicants did not demonstrate what substantial loss they would suffer since their title remains uncancelled and they remain registered proprietors.

p. 2
02

Injunction pending appeal

Holding

Refused; the application was founded on mere apprehension without concrete evidence

Reasoning

Applying the principles in Giella v Cassman Brown and the criteria in Patricia Njeri v National Museum of Kenya, the Court held that since the suit land remains registered in the Applicants' names, the Defendant cannot lease, transfer or dispose of it without the title. The claimed 'underhand dealings' were speculative, so no irreparable harm or prima facie case was shown.

p. 3

Legal principles established

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  • Substantial loss is the cornerstone of an application for stay of execution pending appeal
  • A negative order which is incapable of execution save in respect of costs only cannot be stayed
  • An application for stay pending appeal must be made without unreasonable delay

Court orders

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  1. 1.The plaintiffs/Applicants' Notice of Motion dated 11th February 2019 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1), (2) and (6)
  • Civil Procedure RulesOrder 40 Rules 1(a), (b), 2(1) and (2)
  • Civil Procedure RulesOrder XLI Rule 4
  • Civil Procedure ActSections 1, 1B, 3 and 3A

Cases cited (5)

  • KENYA SHELL .V. BENJAMIN KARUGA KIBIRU & ANOTHER
    1986 KLR 410
  • WESTERN COLLEGE OF ARTS & APPLIED SCIENCES .V. ORANGA & OTHERS
    1979 KLR 63
  • CO-OPERATIVE BANK OF KENYA LTD .V. BANKING INSURANCE & FINANCE UNION
    2015 eKLR
  • PATRICIA NJERI & OTHRS .V. NATIONAL MUSEUM OF KENYA
    2014 eKLR
  • GIELLA .V. CASSMAN BROWN LTD
    1973 E.A 358
Jurisdiction invoked
Order 42 Rule 6(1), (2) and (6) and Orders 40 Rules 1(a)(b) and 2(1) and (2) of the Civil Procedure Rules; Sections 1, 1B, 3 and 3A of the Civil Procedure Act

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, "Charles Odhiambo Kasera & another v Salome Nafula Richard [2019] KEELC 3398 (KLR)", Case Analysis (2019). Notice of Motion dated 11th February 2019 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3398/eng@2019-05-09

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