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ELCDismissedNot stated in the excerpt· [2022] KEELC 328 (KLR)

Naftaly Mwiti Iruki & another v Kaimba Magaara; District Land Registrar & 2 others (interested parties) [2022] KEELC 328 (KLR)

Environment and Land Court
6 April 2022
CNC.K. Nzili
830 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to pause execution of a land judgment because the applicants proved no real loss, offered no security, and disobeyed earlier court orders.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 25 October 2021 in which the applicants (1st and 2nd appellants) sought stay of execution of a decree issued by the lower court on 14 October 2021 pending the hearing and determination of their appeal. The application was supported by an affidavit of Naftaly Mwiti sworn on 26 October 2021, on the grounds that the 1st appellant had a permanent structure on the subject land from which he earned his livelihood, and that execution could render the appeal nugatory. The respondent opposed, asserting he was the genuine allottee of the suitland, that the appeal would merely prolong his enjoyment of the judgment, and that the structures had been hurriedly erected despite interim orders prohibiting construction. The court set out the Order 42 rule 6 requirements: substantial loss, application without inordinate delay, security for due performance of the decree, and the interest of justice. Applying authorities including Gatirau Peter Munya vs Dickson Mwenda Kithinji and James Wangalwa vs Agnes Naliaka Cheseto, the court found no substantial loss demonstrated because no valuation report was attached, the trial court had given the 1st appellant time to remove his structures, and any transfer could be reversed if the appeal succeeded. The applicants also failed to offer security and had breached interim orders by hurriedly erecting structures. The application was dismissed with costs.

Key legal issues

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01

Substantial loss

Holding

No substantial loss demonstrated

Reasoning

The 1st appellant claimed loss of livelihood from permanent structures on the land but attached no valuation reports quantifying the loss. Further, the trial court had given him time to remove the structures, and should the appeal succeed, any transfer could be reversed.

p. 2
02

Security for due performance of the decree

Holding

Applicants failed to offer security

Reasoning

The applicants did not indicate the nature of security they would deposit should the appeal fail, contrary to the requirements of Order 42 rule 6. This failure weighed against the grant of stay.

p. 2
03

Conduct of the applicant / interest of justice

Holding

Applicants erected structures in breach of interim orders, disentitling them to stay

Reasoning

The applicants did not deny that interim orders stopping construction of permanent structures were in place, yet they hurriedly erected the structures. A party coming to court for discretionary relief must come with clean hands.

p. 2

Legal principles established

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  • A party seeking stay of execution must establish substantial loss, file without inordinate delay, offer security, and show it is in the interest of justice
  • Substantial loss must be demonstrated with cogent and tangible evidence

Court orders

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  1. 1.The application dated 25.10.2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6

Cases cited (9)

  • RWW vs EKW
    (2019) eKLR
  • Stanley Kiplagat Rono & another vs William Kiprotich Chesus
    (2021) eKLR
  • Charles Wahome Githi vs Angela Wairimu Gethi
    (2008) eKLR
  • David Kipkoshe Kimeli vs Titus Barmasai
    (2019) eKLR
  • Madhiva t/a Machira and Co. Advocates vs East African Standard
    (2002) KLR 63
  • Sharma vs Ashina Raikudallia T/a Raivundalia and Co. Advocates
  • Gatirau Peter Munya vs Dickson Mwenda Kithinji and 2 others
    (2014) eKLR
  • Board of Governors Moi High School Kabarak & another vs Malcom Bell
    (2013) eKLR
  • James Wangalwa & another vs Agnes Naliaka Cheseto
    (2013) eKLR
On appeal from
Lower court (not specified)
Jurisdiction invoked
Order 42 rule 6 Civil Procedure Rules (appellate/stay jurisdiction over appeal from lower court)

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, "Naftaly Mwiti Iruki & another v Kaimba Magaara; District Land Registrar & 2 others (interested parties) [2022] KEELC 328 (KLR)", Case Analysis (2022). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/328/eng@2022-04-06

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