James Kigen & another v China Hanan International Co-operation Group Co. Limited; National Land Commission & 2 others (Interested Parties) [2022] KEELC 1000 (KLR)
The bottom line
#A Kenyan land court ordered police to protect a company removing ballast from disputed land and refused to pause the judgment pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether police security should be provided for removal of the ballast
Granted. The Defendant was entitled to remove the ballast under the judgment and had been prevented twice by the Plaintiffs by mischievous use of extracted court directions and a withdrawn application.
The court found the Plaintiffs had repeatedly sought to prevent removal of the ballast 'by hook or crook', including misusing extracted directions from a declined urgency certification. The 2017 ruling had only been refused because the ballast issue was then pending for hearing; the final judgment allowed removal. Security was therefore necessary for the ordered removal to be effected.
Whether stay of execution pending appeal should be granted
Refused. Though filed without unreasonable delay, the Applicants failed to show substantial loss and offered no security.
The court applied the three conditions in Order 42 Rule 6(2). Delay was not an issue. However, the subject matter was 30,000 tons of ballast valued at about Kshs 1,000 per ton, which the multinational Respondent could refund in money if the appeal succeeded, so no substantial loss was shown. The Applicants also offered no security, a pre-condition for stay.
Legal principles established
#- Under Order 42 Rule 6(2) of the Civil Procedure Rules, stay pending appeal requires no unreasonable delay, demonstration of substantial loss, and security for due performance of the decree
- Demonstration of substantial loss is the cornerstone of an application for stay pending appeal
Court orders
#- 1.The Officer Commanding Station (OCS) Segero Police Station directed to provide security to the Defendant as they collect and/or remove 30,000 tons of ballast from the suit land
- 2.Costs of the first application to be in the cause
- 3.The Plaintiffs' application dated 9th February 2022 for stay of execution dismissed with costs to the Respondent
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (interlocutory applications arising from its own judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kigen & another v China Hanan International Co-operation Group Co. Limited; National Land Commission & 2 others (Interested Parties) [2022] KEELC 1000 (KLR)", Case Analysis (2022). Environment and Land Case No. 351 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1000/eng@2022-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.