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ELCDismissedBungoma Chief Magistrate's Court Misc Application No 196 of 2021 (appeal thereof)· [2021] KEELC 1023 (KLR)

Henry Nyongesa v Hudson Wanjala Bitonyake & another [2021] KEELC 1023 (KLR)

Environment and Land Court
4 November 2021
BOBoaz N. Olao
3,341 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The court refused to pause enforcement of an order reopening an access road because the applicant failed to show he would suffer real, substantial loss.

What this practically means

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Executive summary

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The Applicant, Henry Nyongesa, moved the Environment and Land Court at Bungoma by Notice of Motion dated 23rd August 2021 seeking a stay of execution of a ruling delivered on 7th June 2021 by Hon. A. Odawo (SRM) in Bungoma Chief Magistrate's Court Miscellaneous Application No 196 of 2021. That ruling directed the OCS Bungoma Police Station to provide security to the County Surveyors and Land Registrar while re-opening a road of access between the parties' parcels of land, all sub-divisions of East Bukusu/North Sang'alo/891. The Applicant argued that execution would hive off a chunk of his land, render his appeal nugatory, and cause substantial loss; he further challenged the trial court's jurisdiction over boundary disputes and the involvement of police. The Respondents countered that the mutation form and amended map showed a clear access road, that the Applicant had blocked it, and that the trial ruling favoured both parties. The court, Boaz N. Olao J, restated the conditions under Order 42 Rule 6 - substantial loss, no unreasonable delay, and security - emphasizing that substantial loss is the cornerstone and all conditions must be met. Although satisfied the application was made timeously, the court held the trial court's orders contained safeguards against any demolition of structures, so the Applicant had not shown substantial loss or that the appeal would be rendered nugatory. On jurisdiction, the court found no material before it to conclude the matter was a boundary dispute, noting a thin line between boundary disputes and re-opening access roads and citing the landlocked owner's right of access under Section 140 of the Land Act. On police involvement, the court held police may provide security upon request where a party is hostile. The application was dismissed with costs in the appeal.

Key legal issues

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01

Whether the Applicant demonstrated substantial loss to warrant a stay of execution

Holding

The Applicant failed to demonstrate substantial loss; the trial court's orders allowed re-opening of an access road with safeguards against demolition, so the appeal would not be rendered nugatory

Reasoning

The trial magistrate's orders directed a re-opening of a road of access, implying a road previously existed, but stayed the exercise should demolition of structures result, with a report to court and liberty to any aggrieved party. The Applicant did not complain the re-opening would destroy permanent structures. The court would determine at trial whether a road of access actually exists.

p. 4
02

Whether the trial Court lacked jurisdiction to determine a boundary dispute

Holding

The Court could not determine the jurisdictional objection as the pleadings were not availed; there is a thin line between determining a boundary dispute and re-opening a road of access

Reasoning

The Applicant merely asserted, through counsel, that the trial court lacked jurisdiction over boundary disputes without substantiating. The plaint and defence were not availed, leaving no material upon which to conclude the matter was a boundary dispute. Section 140 of the Land Act confers a right of access on landlocked owners.

p. 5
03

Whether the involvement of the Police in executing the trial Court's orders was improper

Holding

Police involvement was justified where a party has been hostile to execution; among police duties is the provision of assistance to the public when in need

Reasoning

While courts should be slow to involve police in purely civil processes, the Respondents averred hostility when the Local Administration and Surveyor attempted to re-open the road. Nothing stops police from providing security upon request where a party is hostile, consistent with Section 24 of the National Police Service Act.

p. 5

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal
  • An applicant for stay must satisfy all the conditions set out in Order 42 Rule 6, not merely some of them
  • An owner of landlocked land has a right of access and may approach the Court for redress under Section 140 of the Land Act
  • The Police may be directed to provide security in execution of Court orders where there is evidence of resistance or hostility

Court orders

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  1. 1.The Notice of Motion dated 23rd August 2021 is hereby dismissed
  2. 2.Costs shall be in the appeal

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 63(e)
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Evidence ActSection 107
  • Land ActSection 140
  • National Police Service ActSection 24, 24(a)

Cases cited (4)

  • Kenya Shell Ltd v Benjamin Kibiru & Another
    1986 KLR 410
  • Butt v Rent Restriction Tribunal
    1982 KLR 417
  • Kamau Muchina v The Ripples C.A
    Civil Appeal No 186 of 1992
  • Petronilla Nekoye Kong'ani v John Barasa & Others
    2021 eKLR
On appeal from
Chief Magistrate's Court, Bungoma
Miscellaneous Application No 196 of 2021
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules; Sections 1A, 1B and 63(e) of the Civil Procedure Act

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, "Henry Nyongesa v Hudson Wanjala Bitonyake & another [2021] KEELC 1023 (KLR)", Case Analysis (2021). Bungoma Chief Magistrate's Court Misc Application No 196 of 2021 (appeal thereof). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1023/eng@2021-11-04

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