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ELCDismissedNot stated in the judgment (Notice of Motion dated 15th March 2021)· [2021] KEELC 2347 (KLR)

Eunice Wambui Nderitu v Kenneth Kimari Gitere & anotherd [2021] KEELC 2347 (KLR)

Environment and Land Court
22 July 2021
2,003 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court refused to pause execution of a land judgment because the losing party proved no concrete loss and there was no enforceable order to stay.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (L. Komingoi, J) determined a Notice of Motion dated 15th March 2021 by the 2nd defendant, Kenneth Kimari Gitere, seeking a stay of execution of the judgment and decree pending his intended appeal to the Court of Appeal, brought under Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules. The application was opposed by the plaintiff, Eunice Wambui Nderitu, who argued that the notice of appeal was filed out of time so no valid appeal was pending, that the applicant was not in occupation of the suit property LR No 13330/246, and that the applicant had not demonstrated irreparable loss nor offered security. The 1st defendant supported dismissal, contending there were no positive orders capable of being stayed since the plaintiff had been declared owner and was in possession. The court identified two issues: whether the application met the threshold for stay, and costs. Relying on Order 42 rule 6(2) and the authorities of Samvir Trustee Ltd v Guardian Bank and Michira v East African Standard, the court held the applicant had not demonstrated substantial loss beyond vague allegations. Applying George Ole Sangui v Kedong Ranch Ltd, the court further found that the dismissal of the 2nd defendant's adverse possession counterclaim was a negative order not capable of execution and thus nothing could be stayed. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the applicant demonstrated substantial loss to warrant a stay

Holding

The applicant failed to demonstrate substantial loss, offering mere allegations without particulars

Reasoning

The court relied on Samvir Trustee Ltd v Guardian Bank and Michira t/a Michira & Co. Advocates v East African Standard, holding that allegations of substantial loss must be supported by empirical or documentary evidence with specific particulars. The applicant only alleged occupation and that his appeal would be rendered nugatory, without specifying how. The plaintiff, as the successful party, was entitled to the fruits of her judgment.

p. 3
02

Whether there was any order capable of being stayed

Holding

No - the judgment dismissed the 2nd defendant's counterclaim for adverse possession, a negative order not enforceable by execution

Reasoning

Following George Ole Sangui v Kedong Ranch Limited, the court held that an order dismissing a suit or counterclaim confers no relief and is not capable of execution or enforcement; the act of dismissal cannot be stayed. Since the judgment in favour of the plaintiff was essentially a declaration and permanent injunction dismissing the adverse possession counterclaim, there was no positive order to stay, and equity does not act in vain.

Legal principles established

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  • For a stay of execution pending appeal, the applicant must satisfy the conditions in Order 42 rule 6(2): substantial loss, application without unreasonable delay, and security
  • A dismissal of a claim is a negative order that cannot be stayed because it is not capable of execution

Court orders

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  1. 1.The Notice of Motion dated 15th March 2021 seeking stay of execution pending appeal is dismissed
  2. 2.Each party do bear own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1), 6(2), 6(4)
  • Civil Procedure RulesOrder 51 rule 1

Cases cited (5)

  • Michira t/a Michira & Co. Advocates vs East African Standard
    [2002] eKLR
  • George Ole Sangui vs Kedong Ranch Ltd
    CA Nai 55 of 2015; [2015] eKLR
  • Re: Global Tours and Travels Ltd
    [2000] LLR 1061
  • Francis Njakwe & Another vs Daniel Toroitch Arap Moi t/a Moi Education Centre
    [2006] eKLR
  • Samvir Trustee Ltd vs Guardian Bank
    [2007] eKLR
Jurisdiction invoked
Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules

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, "Eunice Wambui Nderitu v Kenneth Kimari Gitere & anotherd [2021] KEELC 2347 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 15th March 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2347/eng@2021-07-22

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