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ELCDismissedNot stated in judgment· [2022] KEELC 2304 (KLR)

Sigei v Tanyaag (Environment & Land Case E021 of 2021) [2022] KEELC 2304 (KLR)

Environment and Land Court
5 July 2022
2,492 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to pause injunction orders because the applicant never explained what concrete loss he would suffer if they took effect.

What this practically means

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Executive summary

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The applicant/defendant moved the court by notice of motion dated 28th March, 2022 under Order 42 Rule 6 of the Civil Procedure Rules seeking stay of execution of the orders issued on 24th March, 2022 pending an intended appeal. He contended that the orders had the effect of evicting him from 94 acres of the suit property which he had occupied since 1996 and upon which he had put structures. The plaintiff/respondent opposed, arguing that the orders were preservation/injunction orders, not eviction orders, that stay conditions were unmet, and that the applicant was attempting to reopen adjudicated matters. The applicant also filed further affidavits, including one by the Assistant County Commissioner, Mulot Division, disowning minutes of a meeting of 23rd June, 2021. The court identified three mandatory conditions under Order 42 Rule 6: substantial loss, no unreasonable delay, and security. It found the application was filed promptly but that the applicant failed to demonstrate substantial loss, holding that the onus lies on the applicant and the court will not speculate. The court examined the orders of 24th March, 2022 and prayer 3 of the motion of 4th November, 2021, concluding they granted a temporary injunction restraining dealing with the suit property, not eviction; claims of developments were unsupported by evidence. The authenticity of the June 2021 minutes was deferred to trial. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the applicant satisfied the conditions for stay of execution under Order 42 Rule 6

Holding

The application was brought without unreasonable delay (filed 4 days after the ruling), but the applicant failed to demonstrate substantial loss, so stay was refused

Reasoning

The court applied the mandatory conditions in Order 42 Rule 6(2). Delay was satisfied since the application was filed on 28th March, 2022 following a ruling of 24th March, 2022. However, the applicant failed to state or demonstrate what substantial loss he would suffer. The court found that the impugned orders were preservation/injunction orders, not eviction orders, and that claims of 20 years' occupation and developments were unsupported by evidence.

p. 4
02

Whether the orders of 24th March, 2022 amounted to eviction orders

Holding

No - the orders granted a temporary injunction restraining dealing with the suit property pending determination of the suit, and did not evict the applicant

Reasoning

The court reproduced the ruling of 24th March, 2022 and prayer 3 of the notice of motion dated 4th November, 2021, showing the orders were for preservation of the suit land by way of a temporary injunction restraining cultivation, planting, selling, leasing, alienating and trespassing. The court held that a party cannot create his own understanding of an order, and that eviction requires a formal application heard and determined by the court.

p. 5
03

The authenticity of the minutes of the meeting of 23rd June, 2021 allegedly presided over by the Assistant County Commissioner, Mulot Division

Holding

That issue must await full trial and cannot be determined at the interlocutory stage

Reasoning

Although the Assistant County Commissioner swore a further affidavit denying presiding over the meeting and disowning the initials and rubber stamp on the minutes, the court held that the question of authenticity of the minutes is a matter requiring conclusive address at trial rather than resolution in a stay application.

p. 5

Legal principles established

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  • Three conditions must be satisfied for a stay pending appeal: substantial loss, application without unreasonable delay, and security for due performance of the decree
  • The burden of demonstrating substantial loss lies on the applicant; the court will not speculate on the applicant's behalf
  • An order of eviction arises only out of a formal application heard and determined by the court, and cannot be inferred from an interlocutory injunction order

Court orders

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  1. 1.The notice of motion application dated 28th March, 2022 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 (including Rule 6(2)(a) and (b))
  • Civil Procedure RulesRule 5 (2) (b)
  • Civil Procedure RulesRule 41

Cases cited (11)

  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Patrick Kithaka Borici & Another v Shadrack Nyaga Njeru
    [2019] eKLR
  • Richard Kiprotich Kenduywo v Daniel Muchanga Nyakuri
    [2015] eKLR
  • Trattoria Limited v Joaminah Wanjiku Maina
    [2013] eKLR
  • John Odongo v Joyce Irungu Muhatia
    [2014] eKLR
  • Equity Bank Limited v West Link Mbo Limited as cited in Oliver Collins Wanyama v Engineers Board of Kenya
    [2019] eKLR
  • Board of Governors Moi High School Kabarak & Another v Malcom Bell
    Supreme Court Petitions No.s 6 and 7 of 2013 (unreported)
  • RWW versus EKW
    [2019] eKLR
  • Jeremiah Thuku Nganga & Another v John Waithaka Aidan
    [2019] eKLR
  • Jaj Super Power Cash and Carry Limited v Nairobi City Council & 20 Others
    CA 11/2002
  • Butt V Rent Restriction Tribunal
    (1982) KLR 417
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; jurisdiction over stay of execution of the court's own orders pending appeal

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, "Sigei v Tanyaag (Environment & Land Case E021 of 2021) [2022] KEELC 2304 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2304/eng@2022-07-05

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