Paulina Auma Akoko v Samson Nyanja Akoko [2022] KEELC 1943 (KLR)
The bottom line
#Kenya's Environment and Land Court paused enforcement of a land judgment and froze the property's status, because the losing party was appealing and building on the land.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss for stay of execution
The applicant demonstrated likelihood of substantial loss because the respondent was fencing and erecting a permanent structure on the suit land in execution of the judgment
The court examined the application grounds, the respondent's replying affidavit and submissions, noting both parties acknowledged the ongoing construction. Given the character of the activities on the land, execution would render the appeal nugatory unless stay was granted, satisfying the Order 42 Rule 6(2) condition of substantial loss.
Delay in bringing the application
The 14-day delay between the judgment (13 October 2021) and the application (28 October 2021) was not inordinate and inexcusable
Applying the principle attributed to Apaloo JA in Philip Chemwolo, the court weighed the delay against the circumstances of the matter and found that two weeks was reasonable, so delay did not disqualify the applicant from the stay orders sought.
Security for due performance of the decree
Security was required and fixed as deposit of the original title deed in court within seven days, on pain of the stay lapsing
Relying on Doshi Iron Mongers Ltd v KRA, the court held no person is exempt from furnishing security and that the court has unfettered discretion over its nature. It tailored security as deposit of the title deed, linking lapse of stay to non-compliance.
Injunctive relief versus status quo
Rather than the injunction sought, a status quo order was the appropriate interim preservation measure
Guided by Giella v Cassman Brown and Ogada v Mollin, and exercising its mandate under section 13(7)(a) of the Environment and Land Court Act, the court found a status quo order restraining both parties more suitable than the injunctive order in the circumstances of the pending appeal.
Arguability of the appeal
The appeal was admitted and disclosed triable issues, including proprietorship and allegations of fraud and trust
By dint of the draft memorandum of appeal, the court noted it had admitted the appeal on 23 November 2021, identifying triable issues on proprietorship of the two parcels and alleged fraud and trust, supporting preservation of the suit property pending hearing.
Legal principles established
#- A 14-day delay in filing a stay application, judged against surrounding circumstances, is not inordinate and inexcusable
- No person, including a statutory body, is exempt from providing security for the performance of a decree, and the court has absolute discretion over the nature of security
- Where activities on disputed land are ongoing, the applicant is likely to suffer substantial loss unless stay is granted
- A status quo order may be granted in lieu of an injunction as an interim preservation measure
Court orders
#- 1.Stay of execution of the judgment rendered on 13th October 2021 in Mbita SRM's Court Land Case number 17 of 2019 granted pending the hearing and determination of the appeal
- 2.Status quo order over the suit property: the respondent shall not continue to erect and complete any permanent structure on the suit property and the applicant shall not sell or dispose of the suit property or any part thereof pending appeal
- 3.The applicant to deposit the original title deed in court within seven (7) days as security for due performance of the decree, failing which the stay shall lapse
- 4.Costs of the application to be costs in this appeal
- On appeal from
- Mbita Senior Resident Magistrate's Court
- Land Case No. 17 of 2019
- Jurisdiction invoked
- Sections 1A and 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 40(1) and (2) of the Civil Procedure Rules, 2010; section 13(7)(a) of the Environment and Land Court Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paulina Auma Akoko v Samson Nyanja Akoko [2022] KEELC 1943 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 27th October 2021, filed 28th October 2021, arising from an intended appeal against Mbita SRM's Court Land Case No. 17 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1943/eng@2022-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.