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ELCPartially AllowedMakueni Environment and Land Court Number 321 of 2017 (application dated 21st February 2019)· [2019] KEELC 5017 (KLR)

Edward Mutinda Ndetei & 2 others v Director of Lands and Urban Planning Government of Makueni County & another [2019] KEELC 5017 (KLR)

Environment and Land Court
22 October 2019
2,460 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Makueni court paused execution of a land ruling pending appeal, because demolishing Kshs.270 million in buildings could not be undone if the appeal succeeded.

What this practically means

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Executive summary

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The Plaintiffs/Applicants moved the Environment and Land Court at Makueni by Notice of Motion dated 21st February 2019 under Order 22 Rule 22, Order 42 Rule 6 and Order 51 Rules 1 and 3 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act, seeking stay of the ruling and orders of Mbogo J delivered on 5th February 2019 pending appeal, with costs in the appeal. The Defendants/Respondents opposed via grounds of opposition, asserting the application was incompetent, failed the Order 42 Rule 6(2) conditions, that the Applicants would suffer no irreparable loss, that the intended demolitions had already occurred, and proposing security of Kshs.5,698,123.30/= under the Advocates Remuneration Order. The Applicants relied on authorities including Kiplagat Kotut v Rose Jebor Kipngok, Selestica Ltd v Gold Rock Development Ltd and Focin Motorcycle Co. Ltd v Ann Wambui Wangui, stressing their Kshs.270,000,000/= investment, the risk of demolition, absence of delay and willingness to furnish security. The court found substantial loss established given the investment and the County Government's failure to show capacity to compensate; found the application filed timeously, uncontroverted; accepted the offer of security and fixed it at the Respondents' proposed figure in a joint interest-earning account; and refused conservatory orders as not pleaded. The application was allowed in terms of prayers 3 and 4, conditioned on deposit of Kshs.5,698,123.30/= within 45 days, failing which execution shall issue; costs were to be in the appeal.

Key legal issues

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01

Substantial loss

Holding

Applicants will suffer substantial loss if stay is not granted because of their Kshs.270,000,000/= investment and the Respondents' inability to compensate

Reasoning

The court found it undisputed that the Applicants had invested about Kshs.270,000,000/= on the suit property. The 2nd Respondent, though a County Government, did not demonstrate capacity to compensate for the loss of investments. Demolition would therefore occasion substantial loss that an award of costs in a successful appeal could not remedy.

p. 4
02

Security for due performance of the decree

Holding

Offer to provide security suffices; court fixes the amount, adopting the Respondents' proposed figure

Reasoning

The Applicants deposed willingness to furnish security. Applying Focin Motorcycle Co. Ltd v Ann Wambui Wangui, the court held the offer was a mark of good faith and satisfied the condition. The Respondents' proposed sum of Kshs.5,698,123.30/= under the Advocates Remuneration Order was adopted as sufficient security, payable into a joint interest-earning account.

p. 4
03

Unreasonable delay

Holding

Application filed timeously; delay ground not established

Reasoning

The court agreed with the Applicants' Counsel that the application was filed timeously following the ruling of 5th February 2019, and noted that the Respondents did not controvert the Applicants' deposition on this point. The requirement under Order 42 Rule 6(2)(a) that the application be made without unreasonable delay was therefore satisfied.

p. 4
04

Alternative conservatory orders

Holding

Refused because not pleaded in the application

Reasoning

The Applicants' Counsel sought, in submissions only, conservatory orders to preserve the structures pending appeal. The court agreed with the Respondents that relief not sought in the application itself cannot be granted at submissions stage, and declined the alternative prayer.

p. 4

Legal principles established

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  • Substantial loss may be established by demonstrating significant irreversible investment on the suit property which the decree-holder cannot compensate
  • An applicant's offer to provide security satisfies the security condition for stay; the court determines the form of security

Court orders

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  1. 1.Application allowed in terms of prayers 3 and 4
  2. 2.Stay of the ruling and orders of 5th February 2019 pending the hearing and determination of the appeal
  3. 3.Applicants to deposit Kshs.5,698,123.30/= in an interest-earning account in the joint names of the advocates on record for the parties within 45 days, failing which execution shall issue
  4. 4.Costs of the application to be in the appeal

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 22 Rule 22
  • Civil Procedure Rules 2010Order 42 Rule 6
  • Civil Procedure Rules 2010Order 51 Rules 1 and 3
  • Civil Procedure ActSections 3 and 3A
  • Advocates Remuneration Order, 2014Schedule 6 Sections 1(b) and 2

Cases cited (3)

  • Kiplagat Kotut vs. Rose Jebor Kipngok
    [2015]
  • Selestica Ltd vs. Gold Rock Development Ltd
    [2015] eKLR
  • Focin Motorcycle Co. Ltd vs. Ann Wambui Wangui & another
    [2018] eKLR
Jurisdiction invoked
Order 22 Rule 22, Order 42 Rule 6, Order 51 Rules 1 and 3 of the Civil Procedure Rules 2010; Sections 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, "Edward Mutinda Ndetei & 2 others v Director of Lands and Urban Planning Government of Makueni County & another [2019] KEELC 5017 (KLR)", Case Analysis (2019). Makueni Environment and Land Court Number 321 of 2017 (application dated 21st February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5017/eng@2019-10-22

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