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ELCDismissedJudicial Review application (Embu) – orders of 17th April 2013; notice of motion dated 14th June 2018· [2019] KEELC 4093 (KLR)

Republic v Minister for Lands: Interested Party Dominic Mike Kaminja & another ex-parte Ngiri Ikua [2019] KEELC 4093 (KLR)

Environment and Land Court
13 March 2019
1,234 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to suspend 2013 land orders because a quashed decision leaves nothing to stay and the applicant waited too long.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Embu (Y.M. Angima J) on a notice of motion dated 14th June 2018 by the 1st interested party seeking stay of execution of orders made on 23rd April 2013 (High Court orders of 17th April 2013 by Ong'udi J) pending appeal in the Court of Appeal. The underlying High Court orders quashed by certiorari the Respondent's decision of 30th August 2011 in Minister's Appeal No. 35 of 1989 and prohibited the Land Registrar, Mbeere District from registering ten disputed parcels of land in the name of the 1st interested party. The 1st interested party argued his appeal had high chances of success and that execution would cause his clan irreparable loss. The ex-parte Applicant opposed, contending the application was an abuse of process since a stay should have been sought in the Court of Appeal, and that there was delay. The court observed that the prerogative orders had been in force for nearly six years: since the Respondent's decision was quashed in 2013, there was nothing left to stay, and 'staying' the prohibition would only advantage the interested party without justification. The court further found no demonstrated substantial loss or risk of a nugatory appeal, and noted the application was filed nearly a year after the ruling of 28th June 2017, with routine medical treatment (a two-day hospital admission) not excusing the delay. The motion was dismissed with costs to the ex-parte Applicant.

Key legal issues

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01

Whether there was anything to stay

Holding

Nothing capable of being stayed

Reasoning

The certiorari order quashing the Respondent's decision of 30th August 2011 was issued in 2013; once a decision is quashed nothing remains of it. Similarly the prohibition order bound the Land Registrar, and 'staying' it would amount to registration of the interested party pending appeal, which he had not justified. The applicant never addressed these questions in his application or submissions.

p. 2
02

Substantial loss and nugatory appeal

Holding

Not demonstrated

Reasoning

The court held the interested party had not shown what loss he or his clan would suffer absent a stay, nor that the appeal would be rendered nugatory if successful. The speculative concern that the disputed land might be irrecoverable did not satisfy the threshold for stay pending appeal.

p. 2
03

Unreasonable delay

Holding

Application filed after inordinate and unexplained delay

Reasoning

The interested party knew of the 2013 orders by 4th February 2016 when he sought to set them aside; that application was determined on 28th June 2017, yet he only sought a stay on 14th June 2018, nearly a year later. Routine medical treatment - a two-day admission in November 2017 - was not accepted as a valid explanation for failing to instruct counsel.

p. 2

Legal principles established

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  • Where the decision sought to be stayed has already been quashed, there is nothing capable of being stayed and no useful purpose would be served by an order of stay
  • An applicant for stay must demonstrate substantial loss and that a pending appeal, if successful, may be rendered nugatory

Court orders

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  1. 1.The 1st interested party's notice of motion dated 14th June 2018 seeking stay of execution is dismissed
  2. 2.Costs of the application awarded to the ex-parte Applicant

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(3)(b) & (c), 48, 50(1), 159(2)(a)
  • Environment and Land Court Act, 2011section 13(7)(a)
  • Civil Procedure Act (Cap 21)sections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 22 Rule 25; Order 40 Rule 6; Order 42 Rule 6(2); Order 51 Rules 1, 3, 4, 8 & 13(2)

Cases cited (1)

  • Republic Vs Kenya National Examinations Council ex-parte Geoffrey Gathenji Njoroge & Others
    [1997] eKLR
Jurisdiction invoked
Articles 23(3)(b) & (c), 48, 50(1) and 159(2)(a) of the Constitution; section 13(7)(a) of the Environment and Land Court Act, 2011; sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Orders 22 Rule 25, 40 Rule 6, 42 Rule 6(2) and 51 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, "Republic v Minister for Lands: Interested Party Dominic Mike Kaminja & another ex-parte Ngiri Ikua [2019] KEELC 4093 (KLR)", Case Analysis (2019). Judicial Review application (Embu) – orders of 17th April 2013; notice of motion dated 14th June 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4093/eng@2019-03-13

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