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ELCPartially AllowedELC Case (Bungoma) – plaint dated 13th March 2013· [2022] KEELC 661 (KLR)

Terah Joram v Nahashon Daudi Kisiero & 12 others [2022] KEELC 661 (KLR)

Environment and Land Court
24 March 2022
BOBOAZ N. OLAO
1,763 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court granted a temporary halt to a land judgment, but only because the losing party agreed to hold his title deed and transfer documents in court custody.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion under Order 42 Rule 6 of the Civil Procedure Rules in which Terah Joram, the applicant, sought a stay of execution of a judgment delivered on 17th December 2021 by the Environment and Land Court at Bungoma. In that judgment the court had dismissed the applicant's claim for eviction of the 1st to 9th respondents as trespassers and instead entered judgment for several respondents on their counter-claims for adverse possession, ordering registration of portions of the suit land, ELGON/KAPSOKWONY/478, in their names. The applicant, who lives on the land and filed a Notice of Appeal, argued he would be evicted and his home demolished, depriving him of his only asset. The respondents did not oppose the application. Applying Order 42 Rule 6(2), the court found a filed Notice of Appeal constituted sufficient cause, the application filed a month after judgment involved no unreasonable delay, and the applicant's undertaking to abide by security satisfied that requirement. On substantial loss - the cornerstone of such applications per Kenya Shell Ltd v Benjamin Kibiru - the court found the applicant exaggerated, as only about 29.5 of the 38.2 acres were decreed and there was no evidence the defendants would dispose of their portions. Nonetheless, as the application was unopposed and respondents would remain in occupation of their awarded portions, the court granted a conditional stay: the applicant to deposit the title deed and signed blank transfer forms with the Deputy Registrar within 30 days, failing which the stay lapses. No orders as to costs.

Key legal issues

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01

Whether the conditions for stay of execution under Order 42 Rule 6(2) were met

Holding

The court found sufficient cause in the filed Notice of Appeal, no unreasonable delay in an application filed a month after judgment, and an undertaking to abide by security; substantial loss was only partially demonstrated, so stay was granted on conditions

Reasoning

Order 42 Rule 6(2) requires substantial loss, absence of unreasonable delay, and security. The applicant annexed a Notice of Appeal (sufficient cause), applied within a month (no delay), and offered to abide by security. However, his claim of losing the entire 38.2-acre parcel was contradicted by the decree, which awarded only about 29.5 acres. As the application was unopposed and respondents remain in occupation and suffer no prejudice, the court granted stay subject to deposit of the title deed and blank transfer forms.

p. 3
02

Whether the applicant demonstrated substantial loss

Holding

Only partially; the applicant exaggerated the impact of the decree by claiming the whole parcel would be lost when only about 29.5 acres of 38.2 acres are affected

Reasoning

Relying on Kenya Shell Ltd v Benjamin Kibiru, substantial loss is the cornerstone of a stay application. The court examined the Green Card showing 38.2 acres and calculated that only slightly over 29.5 acres were decreed to the defendants. There was also no evidence the defendants intended to dispose of their portions, and it was implausible the Cabinet Secretary Treasury would dispose of land occupied by a primary school. Nonetheless, given the unopposed application and no prejudice to respondents, stay was granted on conditions.

p. 3

Legal principles established

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  • Substantial loss is the cornerstone of an application for stay of execution
  • A Notice of Appeal constitutes sufficient cause, and an application made a month after judgment is not made with unreasonable delay
  • Even where an application is unopposed, the court must still satisfy itself that it meets the legal threshold

Court orders

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  1. 1.A stay of execution of the Judgment dated 17th December 2021 is granted on condition that the Applicant deposits with the Deputy Registrar within 30 days the title deed to the land parcel NO ELGON/KAPSOKWONY/478
  2. 2.The Applicant shall deposit with the Deputy Registrar within 30 days signed blank transfer forms for each of the defendants awarded land as per their Counter-Claims
  3. 3.The documents to be kept in safe custody by the Deputy Registrar until the appeal in the Court of Appeal is heard and determined or until further orders
  4. 4.In default of compliance with conditions (1) and (2), the order of stay shall lapse
  5. 5.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder XLI Rule 4 (as referenced in Kenya Shell case)

Cases cited (1)

  • KENYA SHELL LTD v. BENJAMIN KIBIRU & ANOTHER
    1986 KLR 410
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "Terah Joram v Nahashon Daudi Kisiero & 12 others [2022] KEELC 661 (KLR)", Case Analysis (2022). ELC Case (Bungoma) – plaint dated 13th March 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/661/eng@2022-03-24

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