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ELCDismissedEnvironment and Land Court at Kisumu (suit number not stated in judgment)· [2021] KEELC 181 (KLR)

Kaloleni Muslim Mosque Committee & another v Seventh Day Adventist Limited & another [2021] KEELC 181 (KLR)

Environment and Land Court
10 December 2021
2,473 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause enforcement of a land judgment because the losing church showed no solid evidence it would suffer real harm.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kisumu (Antony Ombwayo, J) on the 1st Defendant's notice of motion seeking a stay of execution of the court's judgment of 23rd October 2020, in which the plaintiffs' claim succeeded on the basis of legitimate expectation to be allocated the suit parcel KISUMU MUNICIPALITY/BLOCK 5/40 and the cancellation of the 1st Defendant's allotment letter, lease and certificate of lease was ordered. The applicant, having lodged a notice of appeal, sought stay pending appeal, an injunction restraining the plaintiffs from alienating or taking possession, and recall of an order extracted by the plaintiffs on 27th October 2020 without circulation of a draft decree as required by Order 21 Rule 8(2) of the Civil Procedure Rules. The plaintiffs opposed, arguing the application invoked Court of Appeal thresholds, that no substantial loss or nugatory element was shown, that the Commissioner of Lands had no power in 2010 to allocate unalienated public land, and that the plaintiffs were in actual possession. The court applied Order 42 Rule 6(2) and the Butt v Rent Restriction Tribunal principles. It found no inordinate delay (application filed six days after judgment) but held that substantial loss was not demonstrated since no valuation report or evidence of development on the land was availed. It also accepted that non-service of a draft decree before extraction does not invalidate an order. The application was dismissed with costs on 10th December 2021.

Key legal issues

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01

Whether the application was filed without unreasonable delay

Holding

Judgment was delivered on 23rd October 2020 and the application filed on 29th October 2020; there was no inordinate delay

Reasoning

The court compared the date of the judgment with the date of filing of the stay application and found only a six-day interval, concluding the requirement of promptness under Order 42 Rule 6(2)(a) was met on this limb.

p. 3
02

Whether substantial loss was demonstrated

Holding

Substantial loss was not demonstrated

Reasoning

The applicant asserted it would lose title and possession, but adduced no valuation report and no evidence of any development on the land. Following James Wangalwa v Agnes Naliaka Cheseto, mere execution or loss of title assertions without evidence of irreparable effect on the core of the applicant's case do not establish substantial loss, which is the cornerstone of the jurisdiction.

03

Whether the order extracted by the plaintiffs on 27th October 2020 should be recalled for non-compliance with Order 21 Rule 8(2)

Holding

Non-service of the draft decree before extraction does not by itself invalidate the extracted order

Reasoning

The respondent argued, and the court accepted, that the decision on extraction rests with the deputy registrar, who is not bound by proposals of respective counsel; failure to circulate a draft decree does not automatically qualify the order for invalidation.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal must satisfy the conditions in Order 42 Rule 6(2): substantial loss, no unreasonable delay, and security for due performance
  • Mere levying or commencement of execution does not itself amount to substantial loss
  • Substantial loss must be proved with evidence; assertions without a valuation report or evidence of development do not suffice

Court orders

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  1. 1.The application for stay of execution pending appeal is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 21 Rule 8(2)
  • Government Lands Act (Cap 280)Sections 3, 7, 9-18
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (6)

  • Antoine Ndiaye vs African Virtual University
    [2015] eKLR
  • Butt vs Rent Restriction Tribunal
    [1979]
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    [2012] eKLR
  • R(Bibi) v Newham London Borough Council
    (2001) EWCA Civ 607 (2002) 1 WLR 237
  • Keroche Industries Ltd v Kenya Revenue Authority & 5 Others
    (2007) eKLR
  • Seventh Day Adventist Church (East Africa Ltd) Victory Church v Caleb Ouma & 5 Others
    Kisumu ELC Case No. 806/2015
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (2010)

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, "Kaloleni Muslim Mosque Committee & another v Seventh Day Adventist Limited & another [2021] KEELC 181 (KLR)", Case Analysis (2021). Environment and Land Court at Kisumu (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/181/eng@2021-12-10

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