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ELCPartially AllowedNot stated in the extract· [2020] KEELC 814 (KLR)

Ali Lekolela Montet v Rigogo Chonjo Farmers Co. Ltd (Environment & Land Case 102 of 2013) [2020] KEELC 814 (KLR)

Environment and Land Court
5 November 2020
1,143 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court paused eviction from disputed property, but only after a KShs 1 million court deposit within 21 days.

What this practically means

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Executive summary

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On 4th June 2020 the Environment and Land Court at Nakuru entered judgment against the defendant, ordering it and its agents to vacate LR No. 10984/2 within 60 days, awarding mesne profits of KShs 60,000 per year from 2nd March 2007 until vacant possession is delivered, issuing a permanent injunction against trespass, and awarding the plaintiff costs. The defendant filed a Notice of Appeal and a Notice of Motion dated 24th June 2020 seeking stay of execution pending appeal. The application, supported by an affidavit of the defendant's treasurer, Godfrey Magwi, argued that members had already been settled on the disputed land, would be rendered homeless by eviction, that the plaintiff might sell the property causing substantial loss, and cited Covid-19 risks; the defendant offered security. The plaintiff opposed, contending the application sought to deny him the fruits of the judgment and that he had faced demonstrations and threats after judgment; he asked that any stay be conditional on payment of the mesne profits. Applying Order 42 rule 6 of the Civil Procedure Rules, 2010, and applying the Kenya Shell v Kibiru principle that substantial loss is the cornerstone of the jurisdiction, the court held eviction or loss of the property through sale or transfer would constitute substantial loss, and that the applicant was willing to provide security. It granted stay pending appeal conditional on the defendant depositing KShs 1,000,000 in court within 21 days, failing which the stay lapses and the motion stands dismissed with costs, limited the stay to two years, and awarded the plaintiff costs of the motion. Costs of the motion were awarded to the plaintiff.

Key legal issues

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01

Substantial loss

Holding

Eviction from, or sale or transfer of, the suit property would constitute substantial loss justifying stay

Reasoning

The court reasoned that the judgment, unless stayed, would result in eviction of the applicant and its agents, and that nothing would prevent the plaintiff from disposing of the suit property. Eviction or loss of the property through sale or transfer was held to amount to substantial loss, satisfying Order 42 rule 6(2)(a).

p. 2
02

Security for due performance

Holding

KShs 1,000,000 deposited in court within 21 days is appropriate security, taking into account vacant possession and mesne profits of at least KShs 780,000

Reasoning

The court assessed the mesne profits accrued (at least KShs 780,000) together with the vacant possession element of the decree and fixed KShs 1,000,000 as appropriate security, to be deposited in court rather than paid to the plaintiff, since the appeal could go either way.

p. 2
03

Duration of stay

Holding

The stay is time-limited to two years to encourage the applicant to prosecute the appeal diligently

Reasoning

To encourage the applicant to be proactive in prosecuting the appeal, the court limited the life of the stay orders to two years from delivery of the ruling, unless otherwise ordered.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal; an application cannot succeed without demonstrating substantial loss
  • A stay applicant must show substantial loss, absence of unreasonable delay, and provide security as ordered under Order 42 rule 6

Court orders

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  1. 1.Stay of execution of the judgment and decree herein as well as consequential orders granted pending hearing and determination of the defendant's appeal
  2. 2.Costs of Notice of Motion dated 24th June 2020 awarded to the plaintiff
  3. 3.Stay conditional on the defendant depositing in court KShs 1,000,000 within 21 days; in default the stay orders automatically lapse and the motion stands dismissed with costs to the plaintiff
  4. 4.If the defendant complies, the stay orders remain in force for only two years from the date of delivery of the ruling unless otherwise ordered

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6(1) and (2)

Cases cited (1)

  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
On appeal from
Environment and Land Court, Nakuru
Not stated in the extract
Jurisdiction invoked
Order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010

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, "Ali Lekolela Montet v Rigogo Chonjo Farmers Co. Ltd (Environment & Land Case 102 of 2013) [2020] KEELC 814 (KLR)", Case Analysis (2020). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/814/eng@2020-11-05

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