Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedMombasa ELC Appeal (arising from Mombasa CM ELC No. 12 of 2020)· [2021] KEELC 413 (KLR)

Mohamed Idha Mbarak v Ahmed Ali Said & another [2021] KEELC 413 (KLR)

Environment and Land Court
1 December 2021
LNL.L. Naikuni
4,194 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court in Mombasa halted a rent-eviction case pending appeal, requiring the appellant to deposit Kshs. 1.5 million as security, not the Kshs. 5 million demanded.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Mombasa (L.L. Naikuni, J) on a Notice of Motion dated 9th August 2021 by the Appellant, Mohamed Idha Mbarak, seeking stay of proceedings in Mombasa CM ELC No. 12 of 2020 pending his appeal against a ruling of the trial court delivered on 12th February 2021, which dismissed his preliminary objection that the respondents' suit for rent arrears and eviction was time-barred under Section 4(1) of the Limitation of Actions Act. The appellant deposed that he entered a 99-year lease at Kshs. 200 per six months in 1985 with the respondents' late father, built a family home on the suit property, and would suffer substantial loss rendering the appeal nugatory if proceedings continued. The respondents opposed, noting a similar stay application had been dismissed in the lower court, that they had a right to expeditious hearing, and proposing security of Kshs. 5,000,000. The court framed two issues: entitlement to stay of execution/proceedings under Order 42 Rule 6(1), (2) & (6) and costs. Applying the established conditions - substantial loss, no unreasonable delay, security, and that the appeal not be rendered nugatory - the court found substantial loss on the facts of the tenancy and family home, no undue delay in filing, and held the proposed Kshs. 5,000,000 security excessive. The application was allowed: stay of proceedings granted, security of Kshs. 1,500,000 ordered in an escrow joint account, the appeal to be fixed within 90 days, non-comance to trigger automatic dismissal, with costs in the cause.

Key legal issues

#
01

Substantial loss

Holding

The Appellant satisfied the substantial loss test given his 1985 ninety-nine-year tenancy and the residential home he constructed and occupies with his family on the suit property

Reasoning

The court observed that the appellant held a tenancy agreement from 1985 for 99 years and had built a residential house on the suit land where he lives with his family. From these facts it was satisfied that the appellant may suffer substantial loss if the orders sought were not granted, preserving the subject matter pending appeal.

p. 4
02

Unreasonable delay

Holding

There was no undue delay; the memorandum of appeal and a stay application in the lower court were filed in March 2021 after the 12th February 2021 ruling

Reasoning

The court traced the chronology from the ruling of 12th February 2021 to the filing of the memorandum of appeal on 4th March 2021, a stay application before the trial court on 8th March 2021, and the present application on 9th August 2021, concluding the timing was reasonable in law.

p. 5
03

Security for costs

Holding

Security was appropriate but Kshs. 5,000,000 proposed by the Respondents was excessive; Kshs. 1,500,000 in an escrow joint account was ordered

Reasoning

The court noted the dispute concerned rental arrears from a tenancy with monthly rent of Kshs. 200 payable six-monthly, and no details of arrears were placed before it. The value-based demand of Kshs. 5,000,000 was unfair and unreasonable, but the appellant's undertaking to provide reasonable security persuaded the court to grant the orders.

p. 5

Legal principles established

#
  • The purpose of a stay of execution pending appeal is to preserve the subject matter in dispute so the appellant's right of appeal is safeguarded and a successful appeal is not rendered nugatory
  • Conditions for stay of execution pending appeal are sufficient cause, substantial loss, no unreasonable delay, security, and that the appeal not be rendered nugatory
  • The court's discretion on stay must be exercised judicially, weighing that an appeal is not rendered nugatory while the successful litigant is not impeded from enjoying the fruits of judgment

Court orders

#
  1. 1.The notice of motion application dated 9th August, 2021 is meritorious and is hereby allowed
  2. 2.The Appellant/Applicant to deposit Kshs. 1,500,000.00 as security for costs in an escrow joint bank account of the law firms of Messrs. Khalid Salim & Company Advocates and Messrs. Stephen Odiaga Advocates within thirty (30) days
  3. 3.An order of stay of proceedings in Mombasa Chief Magistrate ELC No. 12 of 2020 pending the hearing and determination of the appeal filed against the ruling delivered on 12th February, 2021
  4. 4.The Appellant/Applicant to fix the appeal for hearing within ninety (90) days, with a mention on 25.1.2022 for directions under Section 79B of the Civil Procedure Act and Order 42 Rule 11 of the Civil Procedure Rules
  5. 5.Failure to comply with the above conditions would result in the application automatically standing dismissed
  6. 6.Costs of the application to be in the cause

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 rule 6(1), (2) & (6); Order 22 rule 22; Order 51
  • Limitation of Actions Act (Cap 22)Section 4(1)(a)
  • Civil Procedure Act (Cap 21)Sections 1, 1A, 3, 3A, 27(1), 79B
  • Environment and Land Court Act No. 19 of 2012Section 3

Cases cited (12)

  • Sichnan Huashi Development Company Ltd. v Remax Realton Ltd.
    [2020] eKLR
  • Niafous (Kenya) Ltd. v Churia Road & Bridge Corporation (Kenya) Ltd.
    Milimani HCCC No. 126 of 1999
  • Global Tours & Travel Ltd.
    HCCC No. 43 of 2000
  • Ezekiel Mule Musembi v H. Young & Co. (E.A.) Ltd.
    Com. Appeal No. 24 of 2018 (2019) eKLR
  • David Morton Silvester v Abongo Chesoni
    Civil Appeal No. (NAI) 189 of 2001 (2002) eKLR (2001) E.A. 296
  • Kenya Wildlife Services v James Mutembei
    2019 (eKLR)
  • Consolidated Marine v Namprijad & Ano.
    Civil Appeal No. 93 of 1989 Nairobi
  • Masisi Mwita v Damaris Wanjiku Njeri
    Civil Appeal No. 107 of 2015 [2016] eKLR
  • Vishram Rouji Halal v Thornton & Turpin
    Civil Appeal No. 15 of [1990] KLR 365
  • Canvass Manufacturers Ltd. v Stephen Reuben Korunditu
    Civil Application No. 158 of 1994 [1994] LLR 4853
  • Stephen Wanjahu v Central Glass Industries Ltd.
    Nbi HCC No. 6726 of 1991
  • Hassan Guyo Wakolo v Straman E.A. Ltd.
    [2013]
On appeal from
Chief Magistrate's Court (Mombasa), ELC
Mombasa CM ELC No. 12 of 2020 – Ahmed Ali Said & Salwa Ali Said v Mohamed Idha Mbarak
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court under Order 42 Rules 6(1), (2) & (6) and Order 22 rule 22 of the Civil Procedure Rules; Section 3 of the Environment and Land Court Act No. 19 of 2012

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mohamed Idha Mbarak v Ahmed Ali Said & another [2021] KEELC 413 (KLR)", Case Analysis (2021). Mombasa ELC Appeal (arising from Mombasa CM ELC No. 12 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/413/eng@2021-12-01

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