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ELCDismissedNot stated in the judgment text· [2021] KEELC 1177 (KLR)

Ledero Group Ranch v Nauneri Group Ranch [2021] KEELC 1177 (KLR)

Environment and Land Court
28 October 2021
YAY. M. Angima
1,252 words in judgment
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The bottom line

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A Kenyan court refused to pause enforcement of a land boundary decision because the applicant showed no real loss and nothing could actually be executed.

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 Nyahururu (Y. M. Angima, J) on the Appellant's notice of motion seeking stay of execution of the decision of the Land Registrar Samburu County dated 14th November 2019, the taxation proceedings, and any consequential orders arising from the court's judgment of 15th March 2021, which had dismissed the Appellant's appeal against the Land Registrar's boundary determination. The Appellant contended the Respondent had moved to occupy the disputed land, that an arguable appeal was intended, and that without a stay the appeal would be rendered nugatory. The Respondent opposed, arguing that the Land Registrar's determination was not a decree of the court, that the judgment of 15th March 2021 made no positive order capable of execution, and that no substantial loss had been demonstrated since costs remain recoverable. The court framed a single question: whether the Appellant had made out a case for stay under Order 42 Rule 6(2). Applying that provision, the court found no decree capable of execution, held that taxation or payment of costs cannot amount to substantial loss between two group ranches with no evidence of irrecoverability, and noted that the disputed portion of land between the river and the road remains recoverable by the successful party with no risk of alienation shown. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Appellant demonstrated the conditions for stay of execution under Order 42 Rule 6(2)

Holding

The application failed: no substantial loss was demonstrated, the decision sought to be stayed was not made by this court, and no execution proceedings existed

Reasoning

The court found the Land Registrar's decision was not a decree of the court and the judgment of 15th March 2021 made no positive order capable of execution apart from costs. Costs cannot constitute substantial loss where both parties are group ranches with no evidence of inability to recover costs on appeal. The disputed land, being between the river and the road, remains recoverable by the successful party with no risk of alienation shown.

p. 2

Legal principles established

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  • An order for stay of execution under Order 42 Rule 6(2) requires satisfaction that substantial loss may result, application without unreasonable delay, and security for due performance
  • Taxation or payment of costs does not by itself constitute substantial loss where the applicant has not shown the costs would be unrecoverable
  • A judgment that merely dismisses an appeal without making a positive order is not capable of execution and thus cannot be stayed

Court orders

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  1. 1.The Appellant's notice of motion dated 20th March, 2021 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Section 63(e)
  • Civil Procedure Rules, 2010Order 22 Rule 22
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 51 Rule 1

Cases cited (9)

  • Paul Kamura Kirunge v John Peter Nganga
    [2019] eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Apar Industries Ltd v Joe Freighters Limited
    [2015] eKLR
  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • Halai & Another v Thornton & Turpin [1963] Ltd
    [1990] eKLR
  • Century Oil Trading Company Ltd v Kenya Shell Limited
    Nairobi HCMCA NO 1561 of 2007
  • Victory Construction v BM (a Minor suing through next friend one PMW)
    [2019] eKLR
  • Western College of Arts & Applied Sciences v Oranga & Others
    [1976] KLR 63
  • Kenya Shell Limited v Benjamin Kabiru & Another
    [1986] eKLR
On appeal from
Not stated (decision of the Land Registrar Samburu County, appealed to this court)
Jurisdiction invoked
Section 63(e) of the Civil Procedure Act (Cap. 21) and Order 22 Rule 22, Order 42 Rule 6 and Order 51 Rule 1 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, "Ledero Group Ranch v Nauneri Group Ranch [2021] KEELC 1177 (KLR)", Case Analysis (2021). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1177/eng@2021-10-28

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