Republic v Ministry of Lands and Settlement & 3 others; Ex-parte Applicant:Kahareri Buri Karugu; Efureith Irima Mugo(Interested Party/Applicant) [2020] KEELC 1304 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether substantial loss was demonstrated for a stay of execution pending appeal
The court found that the risk that the suit property would be kept out of the Interested Party's reach upon a successful appeal, and her possible eviction from the land she occupied and cultivated, constituted substantial loss; the application was also filed without delay and no security was required given the nature of the certiorari order
The Interested Party showed long occupation, a homestead and crops on the land, and that the property was already being dealt with. The court held that risk of unavailability of the property upon conclusion of the appeal constitutes substantial loss, and that eviction before appeal would also occasion substantial loss. The application filed one day after judgment satisfied the speed requirement, and certiorari would stand reactivated if the appeal failed, so no security was needed.
Whether the stay application had been overtaken by events
Yes - the decree had been executed, the property sub-divided and portions transferred to third parties, so a stay would be a vain order
Documentary evidence showed the sub-divisions and transfers had been effected in the land register. The court declined to adjudicate the legality of those transactions, holding that such issues fell for determination by the court before which the appeal is pending, and confined itself to finding that a stay had been overtaken by events.
Legal principles established
#- The three statutory conditions for stay of execution pending appeal are substantial loss, absence of unreasonable delay, and security for due performance of the decree
- A court should not make orders in vain, but retains inherent jurisdiction under Section 3A of the Civil Procedure Act to make orders necessary to meet the ends of justice
- Costs follow the event under the proviso to Section 27 of the Civil Procedure Act
Court orders
#- 1.The Interested Party's prayer for stay of execution is declined since it has been overtaken by events
- 2.The Interested Party shall not be evicted from the portion of the suit property she is currently occupying and cultivating until her pending appeal is heard and determined by the Court of Appeal
- 3.Costs of the application shall be costs in the appeal
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act (Cap. 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Ministry of Lands and Settlement & 3 others; Ex-parte Applicant:Kahareri Buri Karugu; Efureith Irima Mugo(Interested Party/Applicant) [2020] KEELC 1304 (KLR)", Case Analysis (2020). Judicial Review application dated 3rd October 2012 (Minister's Appeal Case No. 206 of 1999). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1304/eng@2020-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.