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ELCPartially AllowedNot stated in full; ELC, Mombasa (Notice of Motion dated 31st March 2020 filed 9th April 2020)· [2021] KEELC 1517 (KLR)

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)

Environment and Land Court
18 October 2021
5,631 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Hon. Justice L.L. Naikuni) on a Notice of Motion dated 31st March 2020 and filed on 9th April 2020 by eight Plaintiffs/Applicants. The Applicants sought stay of execution of the court's ruling of 26th February 2020 - which struck out their entire suit on a preliminary objection for failure to comply with Order 1 rules 13 and 18 CPR on representative suits - and a temporary injunction pending their appeal (Court of Appeal Civil Appeal No. 52 of 2020, Mombasa) restraining dealings with suit land Sagalla/Kishamba B/1 (approx. 26,400 acres), which they claimed was community land under Article 63 of the Constitution and the Community Land Act requiring County Government consent. The 1st Defendant/Respondent (Kishamba B. Group Ranch, through its Chairman Benson Mlambo Mwakina) opposed, contending the appeal was defective, the Group Ranch was not community land, sub-division to registered members should proceed by a Government policy deadline of 30th June 2021, and the application was overtaken by events since the Court of Appeal had on 6th May 2021 directed hearing of the appeal within 90 days. The 2nd Interested Party similarly opposed. The court framed three issues and, applying the Order 42 Rule 6 criteria (sufficient cause, substantial loss, no unreasonable delay, security), found substantial loss established, no inordinate delay, and noted no execution had issued for over one and a half years. It allowed the application on condition that the Applicants furnish security for costs of Kshs. 1,000,000 within 30 days, held in an interest-earning joint interest account by both firms of advocates until the appeal is determined, failing which execution to issue. No express costs order was made.

Key legal issues

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01

Whether the Applicants met the threshold for stay of execution and injunction pending appeal under Order 42 Rule 6

Holding

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

Reasoning

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.

p. 6
02

Whether the application was filed without unreasonable delay

Holding

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

Reasoning

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.

p. 6
03

Whether the Applicants had capacity/authority as representatives despite the earlier striking out

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.The notice of motion application dated 31st March, 2020 by the Plaintiffs/Applicants be and is hereby allowed
  3. 3.Failure to comply with the said orders, execution to issue accordingly

Authorities

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Legislation

  • Environment and Land Court ActSections 3, 13(7), 19
  • Civil Procedure Act Cap. 21Sections 1A, 1B, 3, 3A, 63, 94
  • Civil Procedure Rules, 2010Order 1 Rules 13, 18; Order 22 Rule 22(1); Order 42 Rule 6(1)(2)&(6); Order 50 Rule 5
  • Constitution of KenyaArticle 63
  • Community Land ActGeneral

Cases cited (11)

  • Goerge Njiraine Karanja v Godfrey Kariuki Njoroge
    (2019) eKLR
  • Kenya Commercial Bank Ltd v Nicholas Ombija
    (2009) eKLR
  • Stanley Kangethe Kunyanjui v Tony Ketter & 5 Others
    [2012] eKLR
  • Vishram Rurji Habai v Thrornton & Turpour
    Civil Appeal No. Nai. 15 of 1990 [1990] KLR 365
  • Jason Ngumba Kago & 2 Others v Intra Africa Assurance Co. Ltd.
    [2014] eKLR
  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • Masisi Mwita v Damaris Wanjiku Njeri
    Civil Appeal No. 107 of 2015 [2016] eKLR
  • Hassan Guyo Wakolo v Straman E.A. Ltd.
    [2013]
  • Canvass Manufacturers Ltd. v Stephen Reuben Korunditu
    Civil Application No. 158 of 1994 [1994] LLR 4853
  • Stephen Wanjiku v Central Glass Industries Ltd.
    Nbi HCC No. 6726 of 1991
  • Consolidated Marine v Namprijad
    Civil Appeal No. 93 of 1989 Nairobi
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

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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, "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.