Ngiri Ikua (Represented By Agostino Ndaru Muitanjau v Minister for Lands; Dominic Mike Kaminja & another (Interested Parties) [2019] KEELC 4142 (KLR)

Environment and Land Court of Kenya

13 March 2019

YAY.M. Angima

1,219 words in judgment

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The bottom line

A Kenyan court refused to pause quashed land decisions, ruling there was nothing left to stay and that applicants must act quickly to preserve their rights.

What this practically means

Executive summary

This is a ruling of the Environment and Land Court at Embu (Angima J) on a notice of motion dated 14th June 2018 by the 1st interested party seeking a stay of execution of the High Court's prerogative orders of 17th April 2013 pending his appeal to the Court of Appeal. Those orders, made by Ong'udi J in judicial review proceedings, quashed 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 the disputed parcels of land in the 1st interested party's name. The 1st interested party argued the orders were being executed, the appeal had high chances of success, and the application was filed without undue delay, attributing delay to medical treatment. The ex-parte Applicant opposed the application as an abuse of process, arguing it belonged before the Court of Appeal, and that it was brought after unreasonable delay. The court applied the principles in Republic v Kenya National Examinations Council ex-parte Geoffrey Gathenji Njoroge on the nature of certiorari and prohibition. It found nothing capable of being stayed since the decision had been quashed in 2013, that staying the prohibition order would improperly register the 1st interested party as proprietor before the appeal was determined, that no substantial loss or nugatory appeal was demonstrated, and that the application came nearly a year after the ruling of 28th June 2017, with the medical excuse unsupported. The motion was dismissed with costs to the ex-parte Applicant.

Key legal issues

Whether prerogative orders of certiorari and prohibition, already granted, can be stayed pending appeal

Holding

No; once the decision was quashed in 2013 there was nothing left to stay, and 'staying' the prohibition order would mean registering the 1st interested party as proprietor pending appeal without justification

Reasoning

The court reasoned that certiorari had already quashed the Respondent's decision of 30th August 2011, so a stay would serve no purpose. The prohibition order barred registration of the disputed parcels to the 1st interested party; staying it would effectively grant him the very relief he sought in the appeal before it was determined. He gave no reason why he could not await the appeal's outcome.

Whether the conditions for grant of stay pending appeal were satisfied

Holding

They were not: no substantial loss shown, appeal not shown to be rendered nugatory, and the application was brought after nearly one year's unexplained delay

Reasoning

The court found the applicant knew of the orders since 4th February 2016 and following the ruling of 28th June 2017, yet only moved for stay on 14th June 2018. The medical excuse was unsupported by the exhibits, which showed only a two-day hospital admission. The twin tests of substantial loss and nugatory appeal were not demonstrated.

p. 2

Legal principles established

There can be no useful stay of execution of prerogative orders of certiorari where the underlying decision has already been quashed; an applicant must also demonstrate substantial loss, absence of delay, and that the pending appeal would otherwise be rendered nugatory
Delay in seeking a stay must be satisfactorily explained; routine medical treatment does not excuse failure to instruct counsel to file a stay application

Court orders

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

Authorities

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; Order 22 Rule 25, Order 40 Rule 6, Order 42 Rule 6(2) and Order 51 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ngiri Ikua (Represented By Agostino Ndaru Muitanjau v Minister for Lands; Dominic Mike Kaminja & another (Interested Parties) [2019] KEELC 4142 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4142/eng@2019-03-13

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