Zakayo Kaberia v Veronica Kandonge M’njogu, Peter M. Njogu, Baituiri M’njogu, Thuanira M’njogu & Paul M’njogu [2021] KEELC 1218 (KLR)

Environment and Land Court

3 November 2021

CNC.K. NZILI

824 words in judgment

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The bottom line

The Environment and Land Court in Meru refused to pause enforcement of a land ruling because the applicant waited too long and showed no real harm.

What this practically means

Executive summary

The appellant, Zakayo Kaberia, brought a notice of motion seeking stay of execution of a ruling delivered on 23rd June 2021 pending the hearing and determination of his appeal. The lower court ruling arose from an application to review a judgment of 28th December 2018 which had referred the parties back to the Land Adjudication Officer, Kangeta Unit. The appellant relied on his title deed to L.R No. Kangeta/Kangeta/7727 and authorities holding that stay preserves the substratum of an appeal. The respondent opposed, maintaining the title was illegally acquired since earlier objection-stage directions required joint registration, and that implementation of the lower court judgment would prejudice neither party. The court applied Samvir Trustees Ltd v Guardian Bank Ltd and held that the appellant's fear of being summoned by the District Lands Adjudication & Settlement Officer could not amount to substantial loss, since even adverse directions would leave him avenues of redress, and the power to cancel a title deed does not rest with the District Land & Settlement Officer under the Land Registration Act 2012. On delay, the court noted that the judgment under review was delivered on 28.12.2018, no appeal was lodged against it, a title deed had issued since, and the summons relied on (dated 9/7/2021 for a meeting on 15/7/2021) preceded the application made on 7/8/2021, rendering the application overtaken by events. Noting the property was family land, the court encouraged an out-of-court settlement and dismissed the application with costs.

Key legal issues

Substantial loss

Holding

Mere fear of being summoned by the District Lands Adjudication & Settlement Officer does not constitute substantial loss; the appellant would still have avenues of redress.

Reasoning

The court reasoned that the summons issued by the District Lands Adjudication & Settlement Officer were not shown to relate to execution of the decree, and even if adverse directions were given at the meeting, the appellant would still have avenues for redress. Following Samvir Trustees Ltd v Guardian Bank Ltd, apprehension alone does not meet the threshold of substantial loss required for a stay.

p. 2

Unreasonable delay

Holding

The application was brought after an inordinate, unexplained delay and had been overtaken by events.

Reasoning

Judgment was rendered on 28.12.2018 and no appeal was lodged against it; a title deed had since issued in the appellant's favour. The letter summoning the appellant was dated 9/7/2021 for a meeting on 15/7/2021, but the application was made on 7/8/2021, long after that meeting, and the court was not told what became of it.

p. 2

Legal principles established

The power to cancel a title deed does not belong to the District Land & Settlement Officer under the Land Registration Act 2012
Fear alone of being summoned by an officer cannot amount to substantial loss

Court orders

1.The application seeking stay of execution is dismissed with costs

Authorities

Legislation

Land Adjudication ActCap 284
Land Consolidation ActCap 283
Land Registration Act2012
Civil Procedure ActSections 1A & 1B

Cases cited (5)

James Thomas Andafu v Joseph Makokha Akhulanya
(2018) eKLR
Consolidated Marine v Nampijia & Another (NBB)
unreported
Butt v Rent Restriction Tribunal
(1979) eKLR
Victory Construction v BM
(2019) eKLR
Samvir Trustees Ltd v Guardian Bank Ltd
(2007) eKLR

On appeal from: Lower court (not specified in judgment)
Jurisdiction invoked: Inherent jurisdiction to grant stay of execution pending appeal (ruling of 23rd June 2021 appealed against)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Zakayo Kaberia v Veronica Kandonge M’njogu, Peter M. Njogu, Baituiri M’njogu, Thuanira M’njogu & Paul M’njogu [2021] KEELC 1218 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1218/eng@2021-11-03

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