Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedKajiado CMC ELC Appeal (Notice of Motion dated 21st October 2020, arising from Kajiado CMC ELC No. 115 of 2018)· [2021] KEELC 3960 (KLR)

Arthur Kahurani Ng’ang’a v County Council of Ol Kejuado & another [2021] KEELC 3960 (KLR)

Environment and Land Court
17 March 2021
COChristine Ochieng
1,523 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kajiado court paused eviction over a commercial plot, confirming that filing an appeal in Kenya does not automatically stop execution unless you apply for a stay.

What this practically means

#

Executive summary

#
This was a ruling on the Appellant's Notice of Motion dated 21st October 2020, brought under sections 1A, 1B and 3A of the Civil Procedure Act, section 13(7) of the Environment and Land Court Act, and Orders 42, 40 and 51 of the Civil Procedure Rules, seeking to restrain the Respondents from executing the judgment of Hon. Kahuya I. M (Mrs), Principal Magistrate, delivered on 9th September 2020 in Kajiado CMC ELC No. 115 of 2018, which had dismissed the Appellant's case over Plot No. 185 Business/Commercial Noonkopir Trading Centre. The Appellant, in occupation since 1994 and having leased the plot to the Grace of the Cross International Church, deposed that the 30-day stay granted by the lower court had lapsed and that the 2nd Respondent, Lillian A Dickson, threatened to demolish his structure. The 2nd Respondent opposed, asserting she was confirmed owner and was a bona fide purchaser, that the structure was temporary and of little value, and sought security of Kshs. 1,000,000/-. Framing the sole issue as whether stay of execution should issue, Christine Ochieng J applied Order 42 Rule 6(2) and Butt v Rent Restriction Tribunal, finding the application made without unreasonable delay, the memorandum of appeal raising triable issues, and the Appellant, in occupation since 1994, the disadvantaged party. The court allowed the application, issued an injunction restraining execution pending appeal, ordered costs in the cause, and urged expeditious hearing of the appeal.

Key legal issues

#
01

Whether the Appellant met the threshold for stay of execution pending appeal under Order 42 Rule 6(2)

Holding

The Appellant satisfied the criteria: the application was made without unreasonable delay, the memorandum and record of appeal raised triable issues, and the Appellant, in occupation since 1994, would suffer substantial loss if execution proceeded.

Reasoning

The court applied Order 42 Rule 6(2) and the Butt v Rent Restriction Tribunal principles. Both parties admitted the Appellant had been on the suit land and had put up a temporary structure. The application was filed timeously, a record of appeal was already filed, and preserving the substratum of the appeal was necessary to avoid rendering it nugatory. The right of appeal being a constitutional right, the court found the Appellant the disadvantaged party and granted the stay.

p. 2

Legal principles established

#
  • Under Order 42 Rule 6, filing an appeal alone does not operate as a stay of execution; an applicant for stay must show substantial loss, absence of unreasonable delay, and furnish security.
  • The power to grant or refuse a stay of execution is discretionary and should be exercised so as not to render an appeal nugatory.

Court orders

#
  1. 1.Pending the hearing and determination of the Appeal, an injunction issued restraining the Respondents, their employees, agents, servants or any other person(s) from interfering and/or dealing with the Appellant's possession, occupation and ownership of Plot No. 185 Business/Commercial Noonkopir Trading Centre in execution of the judgment delivered on 9th September 2020
  2. 2.Costs of the application to be in the cause
  3. 3.Parties urged to expedite the hearing of the Appeal
On appeal from
Chief Magistrate's Court, Kajiado (Environment and Land)
Kajiado CMC ELC No. 115 of 2018
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Section 13(7) of the Environment and Land Court Act; Order 42 Rule 6, Order 40 Rules 1(a) & (b) and 4, Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Arthur Kahurani Ng’ang’a v County Council of Ol Kejuado & another [2021] KEELC 3960 (KLR)", Case Analysis (2021). Kajiado CMC ELC Appeal (Notice of Motion dated 21st October 2020, arising from Kajiado CMC ELC No. 115 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3960/eng@2021-03-17

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