Gikonyo & another v Kamau (Environment and Land Appeal E26 of 2021) [2022] KEELC 174 (KLR)
The bottom line
#A Kenyan land court halted eviction pending appeal because ejecting the occupants would make winning the appeal pointless—though appellants must deposit Kshs. 100,000 security within 60 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was filed without unreasonable delay
The slight delay in filing the stay application was not unreasonable, having been explained; filing the memorandum of appeal signalled non-compliance with the judgment, distinguishing the Jaber Mohsen Ali decision.
Judgment was delivered on 17 November 2021, the memorandum of appeal filed on 8 December 2021 and the application on 11 January 2022. The court distinguished the authority relied on by the respondent, holding that filing a memorandum of appeal demonstrated the appellants' dissatisfaction with the judgment and intention not to comply with it, and the Christmas break and Covid-19 pandemic explained the interval.
Whether substantial loss was demonstrated
Substantial loss was established because execution would mean eviction of the appellants from land they have occupied for decades, rendering the appeal nugatory.
Relying on Silverstein v Chesoni, the court found that eviction from property of financial and sentimental value would be irreversible. The respondent's argument that the land could be valued and the appellants reimbursed did not displace the court's duty to preserve the status quo pending appeal.
Whether security for due performance of the decree should be furnished
Security was required, fixed at Kshs. 100,000 to be deposited in court within 60 days, failing which the stay lapses.
Applying Order 42 Rule 6(2)(b) and the authorities on security, the court balanced the appellants' right of appeal against the respondent's right to the fruits of the judgment, holding that the court must hold the ring even-handedly and that security should be given in a form least disadvantageous to the party giving it.
Legal principles established
#- The court has a duty to preserve the status quo pending appeal where execution would render the appeal nugatory.
- A delay in filing a stay application is not unreasonable where the applicant has filed a memorandum of appeal, indicating non-compliance with the judgment, and the delay is explained.
Court orders
#- 1.Pending the hearing and determination of this Appeal, there shall be a stay of execution of the Judgement delivered on the 17th November, 2021 in Nakuru CM ELC 170 of 2019
- 2.The Appellant shall furnish security of Kshs. 100,000 for performance of the decree, to be deposited in court within 60 days
- 3.In the event of failure to comply with the security order, the stay of execution shall stand vacated
- 4.The costs of this application shall be in the Appeal
- On appeal from
- Chief Magistrate's Court at Nakuru (Environment and Land)
- Nakuru CM ELC No. 170 of 2019
- Jurisdiction invoked
- Section 63(e) of the Civil Procedure Act, Order 22 Rule 22, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikonyo & another v Kamau (Environment and Land Appeal E26 of 2021) [2022] KEELC 174 (KLR)", Case Analysis (2022). Not stated in the judgment (Appeal from Nakuru CM ELC No. 170 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/174/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.