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ELCDismissedNotice of Motion dated 14th December, 2020 (Uasin Gishu ELC suit, land parcel Uasin Gishu/Illula/312)· [2021] KEELC 3273 (KLR)

Esther Njeri Gikonyo v Margaret Wambui Mishuri & 3 others [2021] KEELC 3273 (KLR)

Environment and Land Court
19 May 2021
1,471 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a landowner's bid to pause a judgment cancelling her title because she gave no concrete evidence of the harm she claimed.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (S. M. Kibunja, J) determined a Notice of Motion dated 14th December 2020 by the Plaintiff, Esther Njeri Gikonyo, seeking stay of execution of the judgment delivered on 2nd December 2020 - which cancelled her title to land parcel Uasin Gishu/Illula/312 and reverted it to the Settlement Fund Trustees - and an injunction restraining the 1st and 2nd Defendants from interfering with the land, pending an intended appeal. The Plaintiff argued she had lived on the land since 1988, had no alternative land, had filed a Notice of Appeal and moved without delay, and offered to abide by conditions. The 1st and 2nd Defendants opposed, contending the court lacked jurisdiction to grant an injunction pending an appeal to the Court of Appeal under Order 42 Rule 6(6), and that stay could only lie against the decree holder. The court framed two issues: whether a reasonable case for stay and injunction was made, and costs. It found no undue delay, but held the injunction prayer did not touch the 3rd and 4th Defendants (the decree holders) and that no evidence proved trespass by the 1st and 2nd Defendants. Substantial loss was not substantiated; the Settlement Fund Trustees had not complained of encroachment or commenced divesting the land, rendering the offer of security irrelevant. The court acknowledged Section 63 of the Civil Procedure Act confers residual interlocutory powers but dismissed the application with costs to the 1st and 2nd Defendants.

Key legal issues

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01

Whether the Plaintiff was guilty of undue delay in bringing the application

Holding

The Plaintiff moved the court without undue delay

Reasoning

The Notice of Appeal was filed within the prescribed 14 days, the application was filed 13 days after judgment, and Counsel had orally sought typed proceedings on the day of delivery. Delay was therefore not a bar, though the application ultimately failed on substantive grounds.

p. 2
02

Whether the court has jurisdiction to grant an injunction pending an intended appeal to the Court of Appeal

Holding

Order 42 Rule 6(6) limits the court's injunction power to its appellate jurisdiction over subordinate courts and tribunals, but Section 63 of the Civil Procedure Act confers residual power to issue just and convenient interlocutory orders

Reasoning

The court agreed with the 1st and 2nd Defendants that injunctions pending appeal to the Court of Appeal fall outside Order 42 Rule 6(6), but noted the general interlocutory power in Section 63 of the Civil Procedure Act. However, no restraining order issued because no trespass by the 1st and 2nd Defendants was proved.

p. 2
03

Whether the Plaintiff demonstrated substantial loss

Holding

No - substantial loss was not substantiated or particularized

Reasoning

Although the Plaintiff alleged trespass by the 1st and 2nd Defendants, no evidence was presented. The decree holder, the Settlement Fund Trustees, had not complained of encroachment nor commenced divesting itself of the land, so the Plaintiff failed to prove she would suffer substantial loss if stay was refused.

p. 2
04

Whether the Plaintiff's offer of security was relevant

Holding

No - having failed to prove substantial loss, the offer of security was of no relevance

Reasoning

The Plaintiff had deponed willingness to abide by conditions including security, which the court accepted would ordinarily have been complied with had substantial loss been shown. Since substantial loss was not proved, the security offer did not assist the application.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal must substantiate or particularize the substantial loss alleged
  • Section 63 of the Civil Procedure Act cloths the Court with power to issue interlocutory orders to prevent the ends of justice from being defeated

Court orders

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  1. 1.The Plaintiff's application dated the 14th December, 2020 is dismissed with costs to the 1st and 2nd Defendants.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 42 Rule 6(6)
  • Civil Procedure ActSection 63
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Court of Appeal RulesRule 5(2)

Cases cited (1)

  • Bartholomew Mwanyungu & 3 Others v Florence Dean Karimi
    [2019] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 42 Rule 6 of the Civil Procedure Rules; Section 63 Civil Procedure Act

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, "Esther Njeri Gikonyo v Margaret Wambui Mishuri & 3 others [2021] KEELC 3273 (KLR)", Case Analysis (2021). Notice of Motion dated 14th December, 2020 (Uasin Gishu ELC suit, land parcel Uasin Gishu/Illula/312). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3273/eng@2021-05-19

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