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ELCAllowedMukuru-ini PM ELC No. 28 of 2018 - Notice of Motion dated 4th August, 2020· [2020] KEELC 112 (KLR)

Margaret Wagithi Njuki v Bernard Waweru Kiburi & 2 others [2020] KEELC 112 (KLR)

Environment and Land Court
17 December 2020
MOM. C. Oundo
1,476 words in judgment
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The bottom line

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Kenya's Environment and Land Court paused eviction and land sale, requiring a Kshs.100,000 court deposit while the appeal is decided.

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 Nakuru (M.C. Oundo, J) on a Notice of Motion dated 4th August 2020 brought under Sections 3, 3A and 78, 79G of the Civil Procedure Act and Orders 42 and 51(1) of the Civil Procedure Rules. The Applicant, Margaret Waithi Njuki, sought stay of execution of the judgment delivered on 30th June 2020 in Mukuru-ini PM ELC No. 28 of 2018, pending her appeal, together with an interim injunction restraining the Respondents from selling, alienating or disposing of land parcels Gikondi/Gikondi/2094-2096. The Respondents were served and filed no response; the application was deemed unopposed. The Applicant submitted she had taken occupation under a sale agreement, developed her portion and built a matrimonial home where her mother resides, and that eviction would cause irreparable loss not compensable in damages while rendering the appeal nugatory. The court identified the three conditions under Order 42 Rule 6(2): substantial loss, absence of undue delay, and security. Applying the overriding objective and the principle that the court should opt for the lower rather than the higher risk of injustice, it found substantial loss demonstrated, the application filed without undue delay, and exercised its discretion to order security of Kshs.100,000 despite none having been volunteered. The application was allowed with no costs: stay of execution and a mutual temporary injunction were granted, conditional on the deposit, with timelines for compiling the record of appeal and directions for expeditious admission of the appeal.

Key legal issues

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Whether the three conditions in Order 42 Rule 6(2) for stay pending appeal were satisfied

Holding

The conditions were satisfied: substantial loss was shown (eviction from land with a matrimonial home, rendering the appeal nugatory), the application was brought without undue delay (judgment delivered 30 June 2020, application filed 4 August 2020), and security was ordered by the court (Kshs.100,000 deposit within 30 days).

Reasoning

The court applied the three conditions under Order 42 Rule 6(2): substantial loss, absence of unreasonable delay, and security. The applicant demonstrated a reasonable likelihood of loss through eviction from land on which she had built a matrimonial home, while the respondents would suffer no loss. Delay was minimal. Although the applicant had not volunteered security, the court exercised its discretion to order a deposit of Kshs.100,000.

p. 3

Legal principles established

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  • The purpose of stay of execution pending appeal is to preserve the subject matter in dispute so that the appeal, if successful, is not rendered nugatory
  • Courts exercising discretion under the Civil Procedure Act must give effect to the overriding objective and opt for the lower rather than the higher risk of injustice
  • Even where an applicant has not volunteered security, the court has discretion to order that security be furnished where it thinks fit

Court orders

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  1. 1.Stay of execution of the judgment delivered in Mukuru-ini PM ELC No. 28 of 2018 pending the hearing and determination of the Applicant's Appeal
  2. 2.Temporary injunction restraining both the Applicant and the Respondent, their servants and agents, from alienating, selling or dealing adversely with property known as No. Gikondi/Gikondi/2094-2096 pending the Appeal
  3. 3.Applicant to deposit Kshs.100,000/= in Court within 30 days, failing which the stay shall automatically lapse
  4. 4.Applicant/Appellant to compile, file and serve a complete record of Appeal within 60 days
  5. 5.Deputy Registrar directed to call for the lower Court record for admission of the Appeal to be heard expeditiously
  6. 6.No costs

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A, 78, 79G, 1A(2), 1B
  • Civil Procedure RulesOrder 42 Rule 6, Order 51(1)

Cases cited (1)

  • Consolidated Marine Vs Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)
On appeal from
Principal Magistrate's Court, Mukuru-ini
Mukuru-ini PM ELC No. 28 of 2018
Jurisdiction invoked
Sections 3, 3A and 78, 79G of the Civil Procedure Act; Order 42 Rule 6 and Order 51(1) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Margaret Wagithi Njuki v Bernard Waweru Kiburi & 2 others [2020] KEELC 112 (KLR)", Case Analysis (2020). Mukuru-ini PM ELC No. 28 of 2018 - Notice of Motion dated 4th August, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/112/eng@2020-12-17

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