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ELCDismissedELC Case at Eldoret (suit number not stated in the ruling)· [2020] KEELC 2243 (KLR)

Simba Hills Farm Ltd v Sultan Hasham Lalji & 5 others [2020] KEELC 2243 (KLR)

Environment and Land Court
26 May 2020
4,244 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) determines an application dated 30th March 2020 by the 1st Defendant seeking stay of execution of the judgment and decree of 4th March 2020 pending appeal. The judgment had granted the Plaintiff a permanent injunction over LR No. 8304 Eldoret North (1680 acres), compelled the 1st to 3rd Defendants to transfer the title, dismissed the 1st Defendant's counterclaim, and ordered the Plaintiff to pay Kshs. 1,000,000/= being the balance of the purchase price with interest. The Applicant argued substantial loss through possible transfer of the suit property to third parties, no undue delay given COVID-19 court directives, and offered security in the form of a blank land transfer held by its advocates. It also sought striking out of the Plaintiff's replying affidavit for want of authority. The Respondent countered that it had been in occupation for over 50 years, had deposited Kshs. 2,698,740/= in court being the principal plus interest, and that a permanent injunction remained in force so nothing would be lost. The court applied Order 42 Rule 6 of the Civil Procedure Rules and the four tenets for stay (sufficient cause, substantial loss, no unreasonable delay, security). It found no unreasonable delay but held that no substantial loss would arise since the injunction remains in place pending appeal, the Respondent remains in occupation, and the decretal sum stands deposited in court. The application was dismissed with the 1st Defendant to pay the costs of the suit.

Key legal issues

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01

Whether substantial loss was demonstrated

Holding

No substantial loss was demonstrated; the permanent injunction remains in force pending appeal and the plaintiff has been in occupation for over 50 years, so execution of the transfer will not prejudice the applicant

Reasoning

The court examined the nature of the decree: a permanent injunction restraining interference with the land, an order to transfer the land, and payment of a money balance already deposited in court. Since the injunction remains in place and the plaintiff will not part with possession pending appeal, execution of the transfer would cause no prejudice. The decretal sum was already deposited in court, leaving the applicant free to access it.

p. 6
02

Whether the application was brought without unreasonable delay

Holding

The application filed on 9th April 2020 following judgment of 4th March 2020 met the threshold given the COVID-19 pandemic and the Chief Justice's directives scaling down court operations

Reasoning

The judgment was delivered on 4th March 2020 and the application filed on 9th April 2020. The court took into account the COVID-19 pandemic and the Chief Justice's directives of 15th and 20th March 2020 scaling down court operations, holding that each case must be treated on its own merits regarding delay.

p. 5
03

Whether security for due performance was offered

Holding

The offer of a blank land transfer held by the applicant's own advocates was not security, but the plaintiff's deposit of the decretal sum in court satisfied performance of the money decree

Reasoning

The applicant offered only a blank transfer to be held by its own advocates, which the respondent argued was unknown in law and not security at all. The court instead noted that the plaintiff had already deposited Kshs. 2,698,740/= (principal plus interest) in court, fully performing its part of the judgment, and the applicant could access that money pending appeal.

p. 6

Legal principles established

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  • The filing of a notice of appeal or an appeal does not operate as an automatic stay of execution; the applicant must satisfy the threshold under Order 42 Rule 6
  • The purpose of a stay of execution pending appeal is to preserve the subject matter of the dispute so the appeal, if successful, is not rendered nugatory
  • A successful litigant is entitled to the fruits of the judgment unless the law provides otherwise

Court orders

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  1. 1.Application for stay of execution pending appeal dismissed
  2. 2.Transfer of the suit property to the Plaintiff to proceed on condition that the respondent does not part with possession of the suit land pending the hearing and determination of the appeal
  3. 3.Plaintiff's deposit of Kshs. 2,698,740/= in court to remain accessible to the 1st defendant pending the hearing and determination of the appeal
  4. 4.1st Defendant to pay costs of the suit

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 21 Rule 8
  • Civil Procedure Rules, 2010Order 22 Rule 1(a)
  • Civil Procedure ActSection 7 (Explanation 5)
  • Oaths and Statutory Declarations Act Cap 15Section 5
  • Companies ActSection 35 (as amended)
  • Business Laws Amendment Act No. 1 of 2020
  • Court of Appeal RulesRule 5(2)(b)
  • Gazette Notice No. 3137 of 2020 (Chief Justice's Practice Directions on COVID-19)

Cases cited (15)

  • David Kipkoskei Kimeli v Titus Barmasai
    [2019] eKLR
  • Rebecca Chepkoech Lagat v William Kibor Lagat
    [2020] eKLR
  • Moses Ndungu Mbogo & another v Moses Ng'ang'a Kimani
    [2019] eKLR
  • Cortec Mining Kenya Ltd v Cabinet Secretary, Attorney General & Others
    2015 eKLR
  • Congress Rental South Africa v Kenyatta International Convention Centre; Co-operative Bank of Kenya Limited & another (Garnishee)
    [2019]
  • Equity Bank Ltd v Taiga Adams Company Ltd
    [2006] eKLR
  • Carter & Sons Ltd v Deposit Protection Fund Board & 3 Others
  • Silverstein v Chesoni
    (2002) 1 KLR 867
  • Mukuma v Abuoga
  • Stephen Wanjohi v Central Glass Industries Ltd
    HCC No. 6726 of 1991
  • Antoine Ndiaye v African Virtual University
    [2015] eKLR, Civil Suit No. 422 of 2006
  • Jaber Mohsen Ali & Another v Priscillah Boit & Another
    ELC No. 200 of 2012 (2014) eKLR
  • Andrew Kuria Njuguna v Rose Kuria
    NBI Civil Case No. 2 of 2001
  • Machira T/A Machira & Co Advocates v East African Standard (No 2)
    [2002] KLR 63
  • Consolidated Marine v Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal, court that delivered the decree)

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, "Simba Hills Farm Ltd v Sultan Hasham Lalji & 5 others [2020] KEELC 2243 (KLR)", Case Analysis (2020). ELC Case at Eldoret (suit number not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2243/eng@2020-05-26

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