Jackson Maina Nduyu, Esther Waithira Nduyu & Teresiah Njeri Rangata v Paul Ndaire & Julia Waithera Ndaire; Margaret Wairimu Kimani, George Njoroge alias Njooro,John Mbugua, Joseph Maina, Peter Karonga Kuria & Peter Kagunyu Kiragu(Intended Interested Parties) (Environment & Land Case 15 of 2018) [2020] KEELC 3815 (KLR)
The bottom line
#The Environment and Land Court refused to pause a Nyahururu land judgment because the applicants never proved the loss they would suffer and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Whether substantial loss was demonstrated for stay of execution
Not demonstrated; the applicants only attacked the judgment and raised loss for the first time in submissions
The applicant bore the burden of demonstrating the substantial loss it would suffer if stay was denied. The supporting affidavit merely attacked the trial magistrate's judgment without espousing the loss. The substantial-loss argument was raised only in submissions, contrary to the rule that parties are bound by their pleadings.
Whether the application was brought without undue delay
Yes; filed 7th December 2018 after judgment delivered 14th November 2018
Comparing the dates on the record, judgment was delivered on 14th November 2018 and the application for stay lodged on 7th December 2018. The court found this interval to constitute no undue delay, satisfying one of the three conditions.
Whether security for due performance of the decree was given
No security was offered or furnished, a mandatory requirement
Order 42 Rule 6(2)(b) requires the applicant to furnish such security as the court orders for due performance of the decree. The respondent correctly pointed out that no security had been offered. Failure of this mandatory condition, combined with failure on substantial loss, disentitled the applicants to stay.
Whether the intended interested parties could be joined after judgment
No; joinder after conclusion and judgment is of no use and the Meme vs Republic criteria were not met
Although the intended interested parties may have a substantial interest as beneficiaries, the suit had been concluded and judgment entered. Applying the Meme vs Republic criteria, joinder at this late stage would not completely settle the questions in the proceedings and would only muddy the waters; the application was therefore not merited.
Legal principles established
#- Substantial loss is the loss that would render the appeal nugatory if status quo is not preserved
- Parties are bound by their pleadings; a party cannot introduce a case of substantial loss at submissions stage
- The three conditions for stay under Order 42 Rule 6(2) are cumulative and mandatory
Court orders
#- 1.The Application for stay of execution of the Judgment and Decree pending the hearing and determination of the Appeal is denied
- 2.The Application dated the 11th March 2019 seeking to enjoin the intended interested parties to the suit is denied
- 3.The Applicants are granted leave to file and serve their record of Appeal within thirty (30) days from the date of the ruling
- 4.If the Applicants do not file their record of Appeal within the time stipulated, the window granted to file the Appeal shall automatically lapse
- 5.Costs of the Applications shall be borne by the Applicants
- On appeal from
- Chief Magistrate's Court, Nyahururu
- Nyahururu CMC ELC No. 108 of 2018
- Jurisdiction invoked
- Order 42 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 79G and 95 of the Civil Procedure Act, Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Maina Nduyu, Esther Waithira Nduyu & Teresiah Njeri Rangata v Paul Ndaire & Julia Waithera Ndaire; Margaret Wairimu Kimani, George Njoroge alias Njooro,John Mbugua, Joseph Maina, Peter Karonga Kuria & Peter Kagunyu Kiragu(Intended Interested Parties) (Environment & Land Case 15 of 2018) [2020] KEELC 3815 (KLR)", Case Analysis (2020). ELC Appeal (Nyahururu) – two Notices of Motion dated 7th December 2018 and 11th March 2019 arising from Nyahururu CMC ELC No. 108 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3815/eng@2020-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.