Samuel Ng’oboi Kirusua & another v John Olakuyia Kapio [2021] KEELC 2663 (KLR)
The bottom line
#The Environment and Land Court in Kilgoris dismissed an attempt to pause land boundary orders, ruling the appellants proved neither substantial loss nor judicial bias.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellants met the conditions for stay of execution under Order 42 rule 6(2) of the Civil Procedure Rules
The conditions were not met; no substantial loss was demonstrated and no security for costs was offered, and the impugned orders were procedural and lawful
The court applied Order 42 rule 6(2) and the Butt v Rent Restriction Tribunal guidelines. The Appellants neither showed substantial loss nor offered security. The order of 3/9/2020 merely directed the Land Registrar and Surveyor to establish and fix the boundary and file a report, which the court found lawful under Section 23(1) of the Survey Act and not a re-establishment of new boundaries.
Whether the trial magistrate was biased
No bias was established; the impugned orders were issued in the presence of counsel for both parties
Relying on the South African Constitutional Court decision in Brian Patrick De Lacy, the court acknowledged that judicial bias is a constitutional matter, but held that the Appellants bore the burden of demonstrating bias and failed, since counsel for both parties were present when the orders of 3/9/2020 were made, meaning the Appellants were informed of the orders.
Legal principles established
#- Stay of execution is a discretionary power requiring demonstration of substantial loss and an offer of security
- A surveyor's role in fixing a boundary is lawful under Section 23(1) of the Survey Act
- A party alleging judicial bias bears the burden of demonstrating it
Court orders
#- 1.The Notice of Motion dated 4/9/2020 is dismissed with costs
- 2.The order of the court granted on 8/9/2020 is vacated
- On appeal from
- Principal Magistrate's Court, Kilgoris
- MCL & E Case No. 16 of 2018
- Jurisdiction invoked
- First appellate jurisdiction under the Environment and Land Court Act; the court also referenced Article 165 as read with Article 23(1) of the Constitution in considering the bias complaint
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Ng’oboi Kirusua & another v John Olakuyia Kapio [2021] KEELC 2663 (KLR)", Case Analysis (2021). Kilgoris Environment and Land Court Appeal (arising from Kilgoris PM MCL & E Case No. 16 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2663/eng@2021-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.