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ELCPartially AllowedNotice of Motion dated 27th October 2021 in appeal from Mbita SRM's Court Land Case No. 17 of 2019· [2022] KEELC 2146 (KLR)

Paulina Auma Akoko v Samson Nyanja Akoko [2022] KEELC 2146 (KLR)

Environment and Land Court
19 January 2022
1,902 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 paused a land judgment and froze construction, showing courts will protect appellants who act quickly and offer security.

What this practically means

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Executive summary

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By a Notice of Motion dated 27th October 2021 under Order 42 Rule 6 and Order 40(1) and (2) of the Civil Procedure Rules, 2010 and sections 1A and 3A of the Civil Procedure Act, Paulina Auma Akoko, the appellant in an appeal against the judgment of the Senior Resident Magistrate (Hon. N.N Moseti) delivered on 13th October 2021 in Mbita SRM's Court Land Case No. 17 of 2019, sought stay of execution of that judgment and an injunction restraining the respondent, Samson Nyanja Akoko, from interfering with L.R Lambwe West 'B'/375 pending appeal. She deposed she was the registered proprietor, her suit had been dismissed with costs, and the respondent was fencing and building on the land. The respondent opposed, asserting there was no arguable appeal, no substantial loss, no security offered, and that the applicant sought to deny him the fruits of his judgment. Written submissions were filed by both sides. G M A Ongondo J found the applicant had satisfied the Order 42 Rule 6(2) conditions: she would suffer substantial loss given the construction activities, the fourteen-day delay was not inordinate, the appeal had been admitted and disclosed triable issues including proprietorship, alleged fraud and trust, and her fair hearing and access-to-justice rights under Articles 50(1), 25(c) and 48 weighed in her favour. The court allowed the application, granting stay of execution, issuing a status quo order in lieu of the injunction restraining both parties, and requiring deposit of the original title deed as security within seven days failing which the stay would lapse, with costs of the application in the appeal.

Key legal issues

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01

Substantial loss under Order 42 Rule 6(2)

Holding

The applicant established substantial loss because the respondent had commenced fencing and erection of a permanent structure on the suit property in execution of the judgment.

Reasoning

The court observed that ground (i) of the application and paragraph 8 of the replying affidavit spoke to detriment to the appeal and the respondent's house erected on the land. Given the character of activities being carried out by the respondent on the land, the applicant was likely to suffer substantial loss unless the stay sought was granted.

p. 2
02

Delay in bringing the application

Holding

The fourteen-day delay between the judgment (13th October 2021) and the filing of the application (28th October 2021) was neither inordinate nor inexcusable.

Reasoning

Relying on Apaloo JA in Philip Chemwolo v Augustine Kubende and anchoring the equitable principle that delay defeats equity in Article 10(2)(b) of the Constitution, the court held that the fourteen-day delay, charged against the surrounding circumstances, was not inordinate and inexcusable.

p. 2
03

Security for due performance of the decree

Holding

Security was required and the court directed deposit of the original title deed within seven days, failing which the stay would lapse.

Reasoning

The court held that no person, including a statutory body, is exempt from providing security, citing Doshi Iron Mongers Ltd v KRA, and that the court enjoys an absolute and unfettered discretion to order the nature of security to be provided by the applicant.

p. 2
04

Injunctive relief pending appeal

Holding

The court declined a formal injunction and instead issued a status quo order restraining further construction by the respondent and any sale or disposition by the applicant.

Reasoning

Guided by Giella v Cassman Brown and Nguruman, and noting its power under section 13(7)(a) of the ELC Act to grant interim preservation and status quo orders, the court found maintenance of the prevailing status quo to be the merited interim preservation order in lieu of the injunction sought in prayer (3).

p. 2
05

Arguability of the appeal

Holding

The appeal, already admitted on 23rd November 2021, disclosed triable issues including proprietorship of L R No. Lambwe West 'B'/374 and the suit property, and alleged fraud and trust.

Reasoning

By dint of the draft memorandum of appeal annexed to the application, the court had admitted the appeal on 23rd November 2021. It found triable issues disclosed therein, and anchored the applicant's right to be heard on Articles 50(1) and 25(c) and the right of access to justice under Article 48.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate substantial loss, that the application was brought without inordinate delay, and offer security for the due performance of the decree.
  • No person, including a statutory body, is exempt from providing security for the performance of a decree, and the court has absolute discretion on the nature of security.
  • A fourteen-day delay in bringing a stay application was not inordinate or inexcusable in the circumstances.

Court orders

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  1. 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. 2.Status quo order over the suit property: the respondent shall not continue to erect and complete the erection of any permanent structure on the suit property and the applicant shall not sell or dispose of in any manner the suit property or any part thereof pending the hearing and determination of the appeal
  3. 3.The applicant shall deposit in court within seven (7) days the original title deed in respect of the suit land as security for the due performance of the decree or order ultimately binding upon her, failing which the stay shall lapse without a further order of the court
  4. 4.Costs of the application to be costs in this appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6 (and 6(2))
  • Civil Procedure Rules, 2010Order 40 (1) and (2); Order 40 Rule 2
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Civil Procedure Act (Cap 21)Sections 1A and 3A
  • Land Registration ActSections 24 and 25
  • Constitution of Kenya, 2010Article 10(2)(b)
  • Constitution of Kenya, 2010Articles 50(1), 25(c) and 48
  • Environment and Land Court Act, 2015Section 13(7)(a)

Cases cited (12)

  • The Public Service Commission and 72 others v Okiya Omtatah and 4 others
    Civil Appeal (Application) No. E131 of 2021 (2021) eKLR
  • Executive Estates Limited v Kenya Posts and Another
    (2005) 1 EA 53
  • Co-operative Banking Insurance and Finance Union (Kenya)
    (2015) eKLR
  • Republic v Retirement Benefits Tribunal Ex-parte Heritage A.I.I Insurance Company Limited Retirement Benefits Scheme
    (2017) eKLR
  • Philip Kiptoo Chemwolo and another v Augustine Kubende
    (1986) eKLR
  • Doshi Iron Mongers Ltd v KRA
    2020
  • Butt v Rent Restriction Tribunal
    (1979) eKLR
  • Giella v Cassman Brown and Company Ltd
    1973 EA 358
  • Nguruman Ltd v Jan Bonde Nielsen and 2 others
    2014 eKLR
  • National Bank of Kenya Ltd v Shimmers Plaza Ltd
    2009 KLR 278
  • Ogada v Mollin
    (2009) KLR 620
  • PKA v MSA
    2009 KLR 745
On appeal from
Mbita Senior Resident Magistrate's Court
Land Case No. 17 of 2019
Jurisdiction invoked
Order 42 Rule 6 and Order 40(1) and (2) of the Civil Procedure Rules, 2010; sections 1A and 3A of the Civil Procedure Act (Cap 21); section 13(7)(a) of the Environment and Land Court Act, 2015

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, "Paulina Auma Akoko v Samson Nyanja Akoko [2022] KEELC 2146 (KLR)", Case Analysis (2022). Notice of Motion dated 27th October 2021 in appeal from Mbita SRM's Court Land Case No. 17 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2146/eng@2022-01-19

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