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ELCAllowedKwale Magistrate's Court Environment and Land Appeal (against rulings in Kwale CMC ELC Case No. 24 of 2018)· [2020] KEELC 3403 (KLR)

Nyanje Mdoe & 4 others v Awale Transporters Limited [2020] KEELC 3403 (KLR)

Environment and Land Court
27 January 2020
CYC.K. Yano
1,214 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court halted eviction orders after finding the appellants would suffer substantial loss, as the appeal would be pointless if executed.

What this practically means

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Executive summary

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This was a Notice of Motion dated 12th September 2019 seeking stay of execution of rulings and orders issued by Hon. P. Wambugu, P. M. on 11th September 2019 in Kwale Magistrate's Court ELC Case No. 24 of 2018, pending the hearing and determination of an appeal to the Environment and Land Court at Mombasa. The applicants, supported by affidavits of Nyanje Mdoe, argued that the lower court had granted eviction and demolition orders over their community home at an interlocutory stage, rendering them homeless and denying them a fair trial, and that the appeal would be rendered nugatory without stay. They also noted the orders affected a pending suit, Kwale CMCC ELC Suit No. 31 of 2019. The respondent, Salad Awale Jumale, through a replying affidavit, asserted he was the registered owner of KWALE/SOUTH SAMBURU GROUP RANGE/99, that the applicants were squatters, and that a statutory eviction notice under Section 152E of the Land Act had been confirmed by the lower court; he contended the court could not stay orders in Case No. 24 of 2018 via a suit relating to Case No. 31 of 2019 and that stay would deprive him of his property. Applying Order 42 Rule 6 and the authorities of Kenya Shell Limited v Benjamin Karuga Kigubu and Absalom Dora v Turbo Transporters, the court found no unreasonable delay (the application was filed one day after the ruling), found substantial loss established given the eviction and demolition orders, and held that stay would preserve the subject matter of the appeal. The application was allowed, with costs to abide the outcome of the appeal.

Key legal issues

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01

Delay in filing the application

Holding

The application was filed without unreasonable delay, one day after the ruling.

Reasoning

The rulings were delivered on 11th September 2019 and the application was lodged on 12th September 2019. The court treated this one-day interval as satisfying the requirement that the application be made without unreasonable delay under Order 42 Rule 6(2)(a).

p. 2
02

Substantial loss

Holding

Substantial loss was established because the orders appealed against were eviction and demolition orders.

Reasoning

The lower court had ordered the applicants to vacate or be evicted and their structures demolished. Unless stay was granted, the applicants would be evicted and rendered homeless, and the appeal would be rendered nugatory. Stay would also preserve the subject matter of the appeal.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone for granting stay of execution
  • Stay of execution balances the appellant's right to a meaningful appeal against the decree holder's right to enjoy the decree

Court orders

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  1. 1.Stay of execution of the rulings and orders issued by Hon. P. Wambugu, P. M. on 11th September, 2019 in Kwale Magistrate's Court Environment and Land Court Case No. 24 of 2018 pending hearing and determination of the appeal
  2. 2.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Land ActSection 152E
  • Constitution of Kenya, 2010Article 25(c)

Cases cited (2)

  • Kenya Shell Limited –v- Benjamin Karuga Kigubu & Another
    (1982-1988) KAR 108
  • Absalom Dora –v- Turbo Transporters
    (2013) eKLR
On appeal from
Kwale Magistrate's Court (Environment and Land Court)
Case No. 24 of 2018
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Nyanje Mdoe & 4 others v Awale Transporters Limited [2020] KEELC 3403 (KLR)", Case Analysis (2020). Kwale Magistrate's Court Environment and Land Appeal (against rulings in Kwale CMC ELC Case No. 24 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3403/eng@2020-01-27

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