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ELCAllowedELC Appeal Case No. E012 of 2021 (Nyahururu) — Application dated 5th June 2020 in respect of Nyahururu CMC ELC No. 262 of 2018· [2020] KEELC 1122 (KLR)

Charles Kariuki Njuri v Francis Kimaru Rwara (suing as Administrator of Estate of Rwara Kimaru alias Benson Rwara Kimaru (Deceased) [2020] KEELC 1122 (KLR)

Environment and Land Court
6 October 2020
MOM.C. Oundo
2,685 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Nyahururu landowner who lost a title dispute won a temporary halt to the ruling taking effect, but only after depositing Kshs.1.5 million as security.

What this practically means

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Executive summary

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The Applicant, Charles Kariuki Njuri, moved the Environment and Land Court at Nyahururu by Notice of Motion dated 5th June 2020 seeking stay of execution of the decree of 19th February 2020 in Nyahururu CMC ELC No. 262 of 2018, in which the trial Magistrate declared the registration of the Applicant as owner of Mutara/Mutara Block II/460 null and void ab initio and ordered rectification of the register by cancelling his name and substituting that of the deceased Plaintiff. The application, brought under Sections 3 and 13(7)(a) of the Environment and Land Court Act and Order 42 Rule 6 of the Civil Procedure Rules, was opposed on the grounds that the conditions for stay were unmet, no substantial loss was shown, and there was unexplained delay of about four months. The Applicant argued he had occupied the land since 1994, that his family's livelihood depended on it, and offered the title deed as security. The Court framed two issues: whether the Applicant discharged the Order 42 Rule 6(2) conditions, and what orders to make. Applying Mukuma v Abuoga, Charles Wahome Gethi v Angela Wairimu Gethi, Machira, Kenya Shell v Kibiru, Sharma and the Butt guidelines, it found the delay excused by the Covid-19 pandemic, substantial loss shown, and security satisfiable. The application was allowed on terms: stay pending the intended appeal; Kshs.1,500,000 deposited as security within 21 days, default lapsing the stay; appeal lodged within 30 days; record of appeal within 45 days; costs in the cause.

Key legal issues

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01

Whether the Applicant demonstrated substantial loss

Holding

The Court found substantial loss demonstrated by the Applicant's long occupation of the suit land and the risk that the land would be exposed to adverse dealings, rendering the appeal nugatory

Reasoning

The Applicant and his family had been in occupation since 1994 and used the land to cultivate seasonal crops. Absent a stay, the Respondent could sell, transfer, lease or mortgage the land to third parties, destroying the substratum of the intended Appeal. The Court balanced this against the Respondent's right to enjoy the fruits of its judgment, guided by the authorities on substantial loss and preservation of the status quo.

p. 1
02

Whether the application was brought without undue delay

Holding

The Court found the application filed without undue delay given the Covid-19 pandemic, despite a delay of about four months

Reasoning

Judgment was delivered on 19th February 2020 and the application filed on 9th June 2020, a period of about four months. The Applicant had first sought stay in the trial court, which was denied. In the circumstances of the Covid-19 Pandemic, the Court held the delay was not undue.

p. 3
03

Whether security for due performance had been offered

Holding

The Applicant's offer to deposit the title deed sufficed in principle, but the Court in its discretion ordered monetary security of Kshs.1,500,000/=

Reasoning

Order 42 Rule 6(2)(b) mandates furnishing of security. The purpose of security is to guarantee due performance of the decree, not to punish the judgment debtor. The Applicant pledged the title deed; the Court instead fixed a monetary deposit with an automatic lapse in default.

p. 3

Legal principles established

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  • The purpose of an application for stay of execution pending appeal is to preserve the subject matter in dispute so the appeal is not rendered nugatory
  • Substantial loss is what must be prevented by preserving the status quo
  • A party seeking stay must demonstrate the substantial loss it stands to suffer, not merely assert residence on the suit land

Court orders

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  1. 1.Stay of execution of the judgment/decree granted pending hearing and determination of the Applicant's intended Appeal
  2. 2.The Applicant to deposit security of Kshs.1,500,000/= in court within 21 days from the date of delivery of the ruling, failing which the stay orders shall automatically lapse
  3. 3.The Applicant to lodge his Appeal against the decree of the lower Court within 30 days
  4. 4.Upon filing the Memorandum of Appeal, the Applicant to prepare, file and serve his record of appeal within 45 days
  5. 5.Costs in the cause

Authorities

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Legislation

  • Environment and Land Court ActSections 3 & 13(7)(a)
  • Civil Procedure RulesOrder 42 Rule 6(1) & (2)
  • Civil Procedure RulesOrder 51 Rule 1 and 3

Cases cited (9)

  • Butt vs Rent Restriction Tribunal
    [1979] eKLR; [1982] KLR 417
  • Rhoda Mukuma vs John Abuoga
    [1988] eKLR; (1988) KLR 645
  • Kiplagat Kotut vs Rose Jebor Kipngok
    [2015] eKLR
  • David Kipkoskei Kimeli vs Titus Barmasai
    [2019] eKLR
  • Machira t/a Machira & Co. Advocates vs East African Standard (No. 2)
    (2002) KLR 63
  • Consolidated Marine vs Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)
  • Charles Wahome Gethi vs Angela Wairimu Gethi
    [2008] eKLR
  • Kenya Shell Ltd vs Kibiru & Another
    [1986] KLR 410
  • Aron C. Sharma vs Ashana Raikundalia T/A Rairundalia & Co. Advocates
On appeal from
Chief Magistrates' Court, Nyahururu
CMC ELC No. 262 of 2018
Jurisdiction invoked
Sections 3 & 13(7)(a) of the Environment and Land Court Act and Order 42 Rule 6(1) & (2) and Order 51 Rule 1 and 3 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 (25)

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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, "Charles Kariuki Njuri v Francis Kimaru Rwara (suing as Administrator of Estate of Rwara Kimaru alias Benson Rwara Kimaru (Deceased) [2020] KEELC 1122 (KLR)", Case Analysis (2020). ELC Appeal Case No. E012 of 2021 (Nyahururu) — Application dated 5th June 2020 in respect of Nyahururu CMC ELC No. 262 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1122/eng@2020-10-06

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