Justus Chai Mbaru & 12 others v County Government of Mombasa; National Land Commission & 2 others (Interested Parties) [2021] KEELC 3731 (KLR)
The bottom line
#A Kenyan court refused to stop Mombasa's Buxton Estate demolition because tenants who accepted Kshs 240,000 compensation could not claim they would suffer substantial loss.
What this practically means
#Executive summary
#Key legal issues
#Applicable procedural framework for applications in constitutional petitions
The Mutunga Rules strictly apply to constitutional petitions, but Civil Procedure provisions may be borrowed to fill lacunae, and misidentification of the enabling provision will not defeat a meritorious application
The court observed that although the petition is governed by the Mutunga Rules, Civil Procedure Rules are often applied to petitions where the Mutunga Rules have lacunae. The applicant's citation of Article 159 and Sections 1A, 1B and 3A of the Civil Procedure Act instead of Rule 32 of the Mutunga Rules was therefore immaterial; the application was determined on its merits without prejudice to any party.
Test for injunction/stay pending appeal
Applicant must demonstrate no unreasonable delay, substantial loss, and security; the court borrows Order 42 Rule 6(2) of the Civil Procedure Rules
The court held that the principles governing stay under Order 42 Rule 6(2) of the Civil Procedure Rules apply to applications for stay or injunction pending appeal in constitutional petitions. While delay was absent (application filed a day after judgment), the crucial requirement of substantial loss was not met, making consideration of security unnecessary.
Whether substantial loss was demonstrated
No substantial loss was demonstrated; relocation plan with ex gratia payment of Kshs 240,000/= mitigated any hardship, and several petitioners had themselves accepted payment and signed purchase agreements
The court found it antithetical for applicants to seek to stay orders they were themselves executing, having collected ex gratia payments and signed for purchase of new flats. With about 90% of tenants voluntarily paid and relocated, the disruption of moving out had already been mitigated by compensation intended to secure alternative accommodation during the project.
Legal principles established
#- To succeed in an application for stay or injunction pending appeal, the applicant must show that the application was made without unreasonable delay, that substantial loss will result if the order is not granted, and that the applicant is ready to provide security for due performance of the decree.
- Compensation granted to secure alternative accommodation negates substantial loss where relocation is being executed under an agreed plan.
- Courts should not sacrifice substance over procedure, and procedural technicalities should not render an application incompetent absent prejudice.
Court orders
#- 1.The application dated 4 March 2021 seeking an injunction/status quo pending appeal is dismissed
- 2.Costs of the application are awarded to the respondents/interested parties
- Jurisdiction invoked
- Article 159 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and the inherent jurisdiction of the Court, as invoked by the applicants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Justus Chai Mbaru & 12 others v County Government of Mombasa; National Land Commission & 2 others (Interested Parties) [2021] KEELC 3731 (KLR)", Case Analysis (2021). Not stated in the extract (Constitutional Petition, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3731/eng@2021-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.