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ELCAllowedNyahururu CMCC No. 64 of 2020 (appeal; notice of motion dated 23rd March, 2021)· [2021] KEELC 849 (KLR)
James Macharia Njuguna (suing S the Legal representative of the Estate of William Njuguna Mariga (Deceased) v Ruth Kanini Ndungu [2021] KEELC 849 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court paused a land injunction and case because evicting a family during an appeal would cause serious harm.
What this practically means
#Executive summary
#By a notice of motion dated 23rd March, 2021, the Appellant sought a stay of proceedings and a stay of an interim injunction granted by the trial court on 17th February, 2021 in Nyahururu CMCC No. 64 of 2020, pending the hearing and determination of his appeal. He argued that the injunction, which restrained him from entering, remaining upon, developing, ploughing or interfering with the suit property while he was in occupation, was in substance a mandatory injunction requiring him to vacate before trial, and that the appeal would be rendered nugatory without a stay. The Respondent opposed, contending that the Appellant's late father had lost an adverse possession claim (having proved only 9 of the 12 required years of occupation), that the Appellant neither resided on the property nor had any legitimate claim to it, and that he had failed to meet the stay requirements and was merely seeking to delay the trial. The court framed a single issue: whether the Appellant had made out a case for stay of proceedings and of the interim injunction. Finding that the Appellant and his family had long been in possession and cultivating the land, the court held that eviction pending appeal would amount to substantial loss under Order 42 Rule 6(2) and would render the appeal nugatory. The application was filed about one month and one week after the impugned order, which was not an unreasonable delay, and no security was necessary. The application was allowed; both the injunction and further proceedings were stayed pending appeal, conditional on filing the record of appeal within 60 days, with costs reserved to the appeal.
Key legal issues
#01
Whether the requirements for stay pending appeal under Order 42 Rule 6(2) were satisfied
Holding
The application was allowed: substantial loss would follow eviction during the appeal, the appeal would be rendered nugatory without a stay, the application was filed without unreasonable delay, and no security was necessary.
Reasoning
The court found the Appellant and his family had been in possession of part of the suit property and cultivating it for years. A prior judgment had found only 9 of the 12 years required for adverse possession, so eviction pending appeal would cause substantial loss and render the appeal nugatory. The one-month delay was not unreasonable and no security was needed since the Respondent could still enforce the injunction if the appeal failed.
p. 2
Legal principles established
#- An injunction restraining a party already in occupation from entering, remaining upon or utilising land is in substance a mandatory injunction which may support a stay pending appeal
- Eviction of persons in long occupation of land during the pendency of an appeal constitutes substantial loss under Order 42 Rule 6(2)
Court orders
#- 1.Stay of the injunction order made on 17th February, 2021 in Nyahururu CMCC No. 64 of 2020 pending the hearing and determination of the appeal
- 2.Stay of further proceedings in Nyahururu CMCC No. 64 of 2021 pending the hearing and determination of the appeal
- 3.Appellant to file and serve the record of appeal within 60 days, failing which orders (a) and (b) shall stand vacated
- 4.Appeal to be mentioned on 1st February 2022 for directions on the hearing thereof
- 5.Costs of the application to be costs in the appeal
- On appeal from
- Trial court (magistrates' court)
- Nyahururu CMCC No. 64 of 2020
- Jurisdiction invoked
- Section 3(1) of the Environment and Land Court Act; Sections 3A, 6, 7 & 63(e) of the Civil Procedure Act; Order 42 Rule 6(1) & (2) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Macharia Njuguna (suing S the Legal representative of the Estate of William Njuguna Mariga (Deceased) v Ruth Kanini Ndungu [2021] KEELC 849 (KLR)", Case Analysis (2021). Nyahururu CMCC No. 64 of 2020 (appeal; notice of motion dated 23rd March, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/849/eng@2021-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.