Esther Njeri Gikonyo v Margaret Wambui Mishuri & 3 others [2021] KEELC 3273 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiff was guilty of undue delay in bringing the application
The Plaintiff moved the court without undue delay
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.
Whether the court has jurisdiction to grant an injunction pending an intended appeal to the Court of Appeal
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
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.
Whether the Plaintiff demonstrated substantial loss
No - substantial loss was not substantiated or particularized
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.
Whether the Plaintiff's offer of security was relevant
No - having failed to prove substantial loss, the offer of security was of no relevance
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.
Legal principles established
#- 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
#- 1.The Plaintiff's application dated the 14th December, 2020 is dismissed with costs to the 1st and 2nd Defendants.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.