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ELCAllowedELC Appeal No. 169 of 2018 (arising from Nanyuki CM ELC No. 169 of 2018)· [2020] KEELC 329 (KLR)

Laikipia County Government v Tirus Kinyua Thumbi [2020] KEELC 329 (KLR)

Environment and Land Court
11 December 2020
3,007 words in judgment
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The bottom line

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Kenya's Environment and Land Court stopped enforcement of a Kshs 20 million judgment against Laikipia County because the money couldn't be recovered if the appeal succeeded.

What this practically means

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Executive summary

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The Applicant, a Government entity (evidently the County Government of Laikipia), moved the Environment and Land Court at Nakuru by Notice of Motion dated 24th August 2020 under Section 65(1)(b) of the Civil Procedure Act, Order 42 Rules 1 and 6(2)(a) of the Civil Procedure Rules and Section 13(4) of the Environment and Land Court Act, seeking stay of execution of a judgment and decree of Kshs. 20,000,000 delivered on 12th August 2020 by the Nanyuki Chief Magistrate's Environment and Land Court in CM ELC No. 169 of 2018, pending an intended appeal. The decree compensated the Respondent for the demolition of his building on the suit land. The Applicant argued substantial loss (inability to recover the decretal sum from the Respondent, whose means were unknown), that the application was filed only 12 days after judgment, and that as Government it was exempt from furnishing security under Order 42 Rule 8, payment requiring County Assembly approval. The Respondent countered that the burden lay on the Applicant to prove he was a man of straw, that stay was discretionary, and that he had already suffered substantial loss; he relied on Superior Hommes and Haulieus authorities urging deposit of the decretal sum. Interim stay had been granted on 2nd September 2020. Oundo J framed two issues: whether the conditions for stay were discharged, and what orders to make. Applying Consolidated Marine, Justus Kyalo Musyoka, Kenya Posts & Telecommunications Corporation and Butt v Rent Restriction Tribunal, the court found substantial loss established (the evidential burden of demonstrating ability to refund shifted to the Respondent, who failed to discharge it), no undue delay, and no security requirement for Government. Stay was granted pending appeal, with the record of appeal to be filed within 30 days, and costs in the cause.

Key legal issues

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01

Substantial loss

Holding

The Applicant demonstrated substantial loss because the Kshs. 20,000,000 decree, if paid out, would be difficult to recover from the Respondent, rendering the appeal nugatory.

Reasoning

The building the decree compensates had already been demolished, so there was no substratum to preserve. The appeal concerned cash damages; if paid and utilized by the Respondent, a successful appeal could not be undone. The Respondent failed to discharge the shifted evidential burden of showing ability to refund the decretal sum, whereas the Government applicant could readily raise the sum.

p. 3
02

Unreasonable delay

Holding

The application filed 12 days after judgment was brought without undue delay.

Reasoning

Judgment was delivered on 12th August 2020 and the application dated 24th August 2020, a 12-day interval which the court found acceptable under Order 42 Rule 6(2)(a).

p. 4
03

Security for due performance

Holding

As the Applicant is Government, no security was required under Order 42 Rule 8 of the Civil Procedure Rules.

Reasoning

Order 42 Rule 8 exempts the Government from furnishing security under rules 6 and 7. The court found the rule applicable and self-explanatory, disposing of the third condition and the Respondent's demand for deposit of the decretal sum.

p. 4

Legal principles established

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  • The purpose of a stay of execution pending appeal is to preserve the subject matter so that a successful appeal is not rendered nugatory.
  • Where an applicant has reasonable grounds to believe the decree holder cannot refund the decretal sum, the evidential burden shifts to the decree holder to show ability to refund.
  • Poverty of a decree holder is not a ground for denying him enjoyment of the fruits of his judgment.

Court orders

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  1. 1.Stay of execution of the judgment issued by the subordinate Court in Nanyuki CMC ELC No. 169 of 2018 on 12th August 2020 pending the hearing and determination of the Appeal
  2. 2.The Applicants shall prepare, file and serve their record of Appeal within 30 days from that date
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 65(1)(b)
  • Civil Procedure RulesOrder 42 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6(1), 6(2)(a), 6(6)
  • Civil Procedure RulesOrder 42 Rule 8
  • Environment and Land Court ActSection 13(4)
  • Evidence ActSection 107

Cases cited (6)

  • Superior Hommes Kenya Limited vs Musango Kithome
    (2018) eKLR
  • Haulieus Limited vs Abdulnasir Abubakar Hassan
    (2017) eKLR
  • Consolidated Marine vs. Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)
  • Justus Kyalo Musyoka v John Kivungo
    [2019] eKLR
  • Kenya Posts & Telecommunications Corporation vs. Paul Gachanga Ndarua
    [2001] eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
On appeal from
Magistrates' Court (Chief Magistrate's Environment and Land Court), Nanyuki
CM ELC No. 169 of 2018
Jurisdiction invoked
Section 65(1)(b) of the Civil Procedure Act, Order 42 Rule 1 & 6(2)(a) of the Civil Procedure Rules and Section 13(4) of the Environment and Land Court 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, "Laikipia County Government v Tirus Kinyua Thumbi [2020] KEELC 329 (KLR)", Case Analysis (2020). ELC Appeal No. 169 of 2018 (arising from Nanyuki CM ELC No. 169 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/329/eng@2020-12-11

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