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ELCOtherJudicial Review application dated 3rd October 2012 (Minister's Appeal Case No. 206 of 1999)· [2020] KEELC 1304 (KLR)

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)

High Court of Kenya
24 September 2020
2,608 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by the High Court at Embu (Y.M. Angima, J) determined a notice of motion dated 20th December 2019 by the Interested Party seeking stay of execution of the decree issued on 19th December 2019, by which the court had quashed the proceedings and decision of the Minister in Minister's Appeal Case No. 206 of 1999 awarding Title No. Mbeere/Kirima/733 to the Interested Party's late father. The Interested Party, in occupation of about 10 acres with a dwelling house and crops, relied on Order 42 Rule 6 of the Civil Procedure Rules, arguing substantial loss and that her intended appeal would be rendered nugatory. The ex parte Applicant opposed, contending the decree had been fully executed as the property had been sub-divided and transferred to third parties, and the Attorney General raised locus and defect objections. The court framed three issues: entitlement to stay, whether the application was overtaken by events, and costs. It found the requirements of substantial loss, speed and no security satisfied, but held that the decree had already been executed, making a stay a vain order. Exercising its inherent jurisdiction under Section 3A of the Civil Procedure Act, the court instead ordered that the Interested Party shall not be evicted from the portion she occupies and cultivates pending her appeal to the Court of Appeal, declined the stay prayer, and directed costs to be costs in the appeal.

Key legal issues

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01

Whether substantial loss was demonstrated for a stay of execution pending appeal

Holding

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

Reasoning

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.

p. 3
02

Whether the stay application had been overtaken by events

Holding

Yes - the decree had been executed, the property sub-divided and portions transferred to third parties, so a stay would be a vain order

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Interested Party's prayer for stay of execution is declined since it has been overtaken by events
  2. 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. 3.Costs of the application shall be costs in the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 (2), (3), (4)
  • Civil Procedure Act (Cap 21)Section 27
  • Civil Procedure Act (Cap. 21)Section 3A

Cases cited (11)

  • Elena Korir V Kenyatta University
    [2014] eKLR
  • Butt V Rent Restriction Tribunal
    [1979] eKLR
  • Antoine Ndiaye V Africa Virtual University
    [2015] eKLR
  • Victory Construction V BM (a minor suing through next friend one PMM)
    [2019] eKLR
  • Masisi Mwita V Damaris Wanjiku Njeru
    [2016] eKLR
  • Richard Kibondo V Ndungu Waweru
    [2019] eKLR
  • Leonardo Mambo Kuria V Ann Wanjiru Mambo
    [2017] eKLR
  • Stanley Kangethe Kinyanjui V Tony Keter & 5 Others
    [2013] eKLR
  • Reliance Bank Ltd V Norlake Investments Ltd
    [2002] 1 EA 227
  • Wilson Vs Church (No 2)
    12 Ch. D 454
  • Hussein Janmohammed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act (Cap. 21)

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, "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.