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ELCPartially Allowed· [2020] KEELC 337 (KLR)

John Mathenge Gichuhi v Cyrus Ndung’u & 2 others [2020] KEELC 337 (KLR)

Environment and Land Court
8 December 2020
3,201 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who ignored a court decree and stayed on the land lost his stay of execution and now faces eviction.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nyahururu (Angima J) determined two competing applications arising from a land decree of 23rd July, 2019 which declared the Plaintiff owner of parcel 711 and the Defendants owners of parcel 712 (subdivided into parcels 1199, 1200 and 1202), with directions to the County Surveyor and Land Registrar to restore boundaries. The Plaintiff sought stay of execution pending intended appeal under Order 42 Rule 6, contending execution would render his appeal nugatory. The Defendants sought review of the decree under Order 45 with consequential orders for eviction, harvest of crops, authorization of auctioneers, and police enforcement. The court dismissed the stay application, holding that a recital of legal advice did not demonstrate substantial loss, that residence on the land alone was insufficient, and that the Plaintiff's flagrant continued cultivation of the Defendants' portion and refusal to vacate despite beaconing displayed impunity undeserving of judicial discretion. The court rejected the Plaintiff's technical objections to the review application: non-compliance with Order 9 on change of advocates, death of the 3rd Defendant after judgment, and absence of written authority under Order 1 Rule 13 were procedural matters not affecting the substance of proceedings, consistent with Article 159(2)(d). On review, the court held that 'any other sufficient reason' under Order 45 Rule 1 need not be ejusdem generis with the enumerated grounds, following Wangechi Kimita v Wakibiru and Official Receiver v Freight Forwarders. The decree was reviewed to issue eviction orders against the Plaintiff from parcels 1199, 1200 and 1202, with auctioneers authorized to evict by force and police directed to ensure compliance within 21 days. The Defendants were awarded costs of both applications.

Key legal issues

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01

Whether the Plaintiff satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6(2)

Holding

No; the Plaintiff failed to demonstrate substantial loss and, in any event, his disregard of the decree disentitled him to the discretion

Reasoning

The court held that an event rendering an appeal nugatory could amount to substantial loss, but the affidavit contained only a statement of legal advice, not a demonstration of loss. Residence on the suit land alone does not show substantial loss, and no risk of unavailability of restitution was shown. The two-month delay was not inordinate, but the Plaintiff's continued cultivation of land decreed to the Defendants and refusal to relocate showed impunity disentitling him to stay.

p. 3
02

Whether the Defendants' application was incompetent for non-compliance with Order 9 Rules 9, 10 & 11, the death of the 3rd Defendant, and absence of written authority under Order 1 Rule 13

Holding

No; the objections were technical and did not render the application incompetent

Reasoning

The court held Order 9 deals with procedural matters not affecting the substance of proceedings, and that justice must be dispensed without undue regard to technicalities under Section 19(1) of the Environment and Land Court Act and Article 159(2)(d). The Order 1 Rule 13 point should have been raised before judgment. The 3rd Defendant died after judgment, and substitution is not required before execution of a decree already passed.

p. 3
03

Whether the Defendants made out a case for review of the decree under Order 45 Rule 1

Holding

Yes; sufficient cause was demonstrated to give effect to the decree, and 'any other sufficient reason' need not be analogous to the enumerated grounds

Reasoning

The purpose of the application was to enable the Defendants to enjoy the fruits of their judgment. The trial court had not expressly ordered eviction but had directed all parties to comply, evidently intending parcel 712 to be restored to the Defendants. The Plaintiff's refusal, per the County Surveyor's report, to vacate even upon beacon installation amounted to frustration of the decree. Following Court of Appeal authority, 'any other sufficient reason' is not construed ejusdem generis.

p. 4
04

Costs of the two applications

Holding

Costs follow the event; the Defendants, as successful parties, were awarded costs of both applications

Reasoning

Applying the proviso to section 27 of the Civil Procedure Act and the principle in Hussein Jan Mohammed & Sons v Twentsche Overseas Trading Co. Ltd, the court found no good reason to depart from the general rule that costs follow the event, and awarded the Defendants costs of both applications to be borne by the Plaintiff.

p. 4

Legal principles established

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  • The phrase 'any other sufficient reason' for review is not confined to grounds analogous to the expressly enumerated grounds in Order 45 Rule 1
  • A party who exhibits impunity by disregarding a decree is undeserving of the court's favourable discretion
  • Procedural requirements such as Order 9 on change of advocates after judgment do not defeat the substance of proceedings, in line with Article 159(2)(d)

Court orders

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  1. 1.The Plaintiff's notice of motion dated 23rd September, 2019 dismissed.
  2. 2.The decree dated 23rd July, 2019 reviewed and an order for eviction of the Plaintiff from Land Ref. Laikipia/Marmanet/Extension/1199, 1200 & 1202 issued.
  3. 3.Tango Auctioneers & General Merchants of P.O. Box 2129 – 20100 Nakuru authorized to evict the Plaintiff, if necessary by force, and remove any structures from the suit properties.
  4. 4.An order directing the OCPD – Laikipia and OCS Kinamba Police Station to ensure compliance with the orders within 21 days from the date thereof.
  5. 5.The Defendants awarded costs of the two applications to be borne by the Plaintiff.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 50, 159(2)(d)
  • Civil Procedure Act (Cap. 21)Sections 1, 1A, 1B, 3, 3A, 27, 80
  • Civil Procedure RulesOrder 1 Rule 13; Order 9 Rules 8, 9, 10 & 11; Order 22 Rules 22, 25 & 48; Order 42 Rule 6; Order 45 Rule 1(b) & 2(1); Order 51 Rule 1
  • Environment and Land Court Act, 2011Section 19(1)

Cases cited (6)

  • Loise Wambui Karigu & Another V Joel Kiragu & Another
    [2016] eKLR
  • Nasibwa Wakenya Moses V University of Nairobi & Another
    [2019] eKLR
  • Wangechi Kimita & Another V Mutahi Wakibiru
    [1982 – 88] 1KAR 977
  • Official Receiver and Liquidator V Freight Forwarders Kenya Ltd
    [2000] eKLR and [2005] eKLR
  • Sadar Mohamed v Charan Singh
    [1959] EA 793
  • Hussein Jan Mohammed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act (Cap. 21) and Order 42 Rule 6 and Order 45 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, "John Mathenge Gichuhi v Cyrus Ndung’u & 2 others [2020] KEELC 337 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/337/eng@2020-12-08

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