Sarah Nandacha Mayeku v Aden Noor Aden [2020] KEELC 2951 (KLR)
The bottom line
#A Kenyan landowner won a court order freezing eviction and any dealing with her Ngong plot until her appeal is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant met the threshold in Order 42 Rule 6(2) for a stay of execution pending appeal
The Appellant satisfied the requirements: she applied without unreasonable delay, filed an appeal, and stood to suffer substantial loss given her continued possession and the appeal revolving around title to the land; the Respondent's allegations of non-disclosure and forgery were unsupported by tangible evidence.
The court noted the application was lodged before execution commenced and that filing an appeal alone does not operate as a stay. The right of appeal is constitutional and fair hearing is guaranteed if stay is granted. The Respondent's claims of material non-disclosure, perjury and sale to a third party were not backed by tangible evidence; the parties' correspondence and letters were matters subject to the appeal itself. Since the Appellant had been in possession and the Respondent admitted never taking possession, she was the disadvantaged party.
Whether alleged material non-disclosure, falsities and perjury by the Applicant disentitled her to a stay
No - the Respondent's averments and correspondence alleging non-disclosure and forgery were insufficient to show the Appellant attempted to 'steal a match', and the authorities relied on were disregarded.
The Respondent relied on several authorities on material non-disclosure, but the court found his averments unsupported by tangible evidence of sale to a third party. The letters from advocates and the Land Registrar annexed by the Respondent were themselves subject to the appeal as they touched the dispute over the two Certificates of Lease, and could not sustain the non-disclosure objection.
Legal principles established
#- The conditions for stay of execution pending appeal are substantial loss, application made without unreasonable delay, and furnishing of security as the court orders under Order 42 Rule 6(2).
- The grant of a stay of execution is a discretionary power to be exercised so as not to render an appeal nugatory.
Court orders
#- 1.A stay of execution of the judgment delivered on 15th August 2019 by Hon. A.K. Ithuku Chief Magistrate in CMCC 219 'A' of 2018 and any further enforcement proceedings, granted pending the hearing and determination of the appeal filed herein
- 2.The Respondent restrained from taking possession, transferring, alienating, charging, entering into or in any other way interfering with the Appellant's possession and ownership of Ngong/Ngong Township Block 2/376 pending determination of the Appeal
- 3.Costs of the application to be in the cause
- On appeal from
- Chief Magistrate's Court (Ngong)
- CMCC 219 'A' of 2018
- Jurisdiction invoked
- Sections 3, 13 and 16A(1) of the Environment and Land Court Act and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sarah Nandacha Mayeku v Aden Noor Aden [2020] KEELC 2951 (KLR)", Case Analysis (2020). ELC Appeal (Ngong) - Notice of Motion dated 26th August 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2951/eng@2020-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.