John Kivure & 7 others (Suing on their behalf and on behalf of 4,201 members of Kishamba B. Group Ranch v Cabinet Secretary Ministry of Lands, Housing and Physical Planning & 4 others; County Governemtn of Taita –Taveta & Dung Tun Kimbo & 13 others (Interested Parties Respondents) [2021] KEELC 1517 (KLR)
The bottom line
#The Land Court paused execution against 26,400 acres of group ranch land, but only because the appellants promised Kshs. 1 million security within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants met the threshold for stay of execution and injunction pending appeal under Order 42 Rule 6
The court found the Applicants satisfied the criteria of substantial loss, no unreasonable delay, and willingness to furnish security, and allowed the application subject to security for costs of Kshs. 1,000,000
The court applied the settled principles from Halal & Another v Thornton & Turpin and related authorities: sufficient cause, substantial loss, no unreasonable delay, and security. It found the Applicants would suffer substantial loss if stay was not granted, noting the notice of appeal and record of appeal were filed timeously. The court also observed that no execution had issued for over one and a half years, and conditioned the stay on the Applicants providing security for costs within 30 days.
Whether the application was filed without unreasonable delay
The court found no inordinate delay: notice of appeal was filed on 27 February 2020, the record of appeal on 7 August 2020, and the application on 9 April 2020
The court traced the chronology from the ruling of 26 February 2020 through the notice of appeal, request for proceedings, record of appeal, and the present application, and concluded the Applicants had acted promptly.
Whether the Applicants had capacity/authority as representatives despite the earlier striking out
The court noted the Applicants likely had good intentions but failed to publish the requisite notice; on the balance of probability it was satisfied they would suffer substantial loss
The court revisited the locus standi issue in the context of stay, acknowledging the letter of authority and list of 4,209 members, but observed the failure to publish notice. It did not sit on appeal over its own order but took the deficiency into account in exercising discretion.
Legal principles established
#- The purpose of an application for stay of execution pending appeal is to preserve the subject matter in dispute so the appellant's right of appeal is safeguarded
- An applicant for stay must demonstrate sufficient cause, substantial loss, no unreasonable delay and furnish security; the discretion must be exercised judicially
Court orders
#- 1.The Plaintiffs/Applicants to provide security for costs of Kenya Shillings one million (Kshs. 1,000,000/-) within 30 days, to be held in an interest-earning joint account by the law firms of Messrs. Litoro & Omwabu & Co. Advocates and Messrs. M.S Shariff & Company until the appeal is heard and determined
- 2.The notice of motion application dated 31st March, 2020 by the Plaintiffs/Applicants be and is hereby allowed
- 3.Failure to comply with the said orders, execution to issue accordingly
- Jurisdiction invoked
- Sections 3, 13(7) and 19 of the Environment and Land Court Act; Sections 1A, 1B, 3, 3A, 63 and 94 of the Civil Procedure Act; Order 22 Rule 22(1), Order 42 Rule 6(1)(2)&(6) and Order 50 Rule 5 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kivure & 7 others (Suing on their behalf and on behalf of 4,201 members of Kishamba B. Group Ranch v Cabinet Secretary Ministry of Lands, Housing and Physical Planning & 4 others; County Governemtn of Taita –Taveta & Dung Tun Kimbo & 13 others (Interested Parties Respondents) [2021] KEELC 1517 (KLR)", Case Analysis (2021). Not stated in full; ELC, Mombasa (Notice of Motion dated 31st March 2020 filed 9th April 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1517/eng@2021-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.