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ELCDismissedNot stated in the ruling (memorandum of appeal dated 02.09.2021)· [2022] KEELC 2322 (KLR)

Njoroge v Njoroge & 2 others (Environment and Land Appeal E014 of 2021) [2022] KEELC 2322 (KLR)

Environment and Land Court
19 May 2022
YAY. M. Angima
1,757 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling on a notice of motion dated September 29, 2021 in which the Appellant sought a stay of execution of the trial court's decree of 18.8.2021 pending appeal, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 rule 6 of the Civil Procedure Rules, 2010. The underlying suit, filed by plaint dated June 28, 2011, concerned 5 acres out of LR No 9195 Sabugo Settlement Scheme, part of the estate of the late Peter Njoroge Karanja. The 1st Respondent pleaded that he and the 2nd Respondent agreed to exchange 5 acres so that her homestead, which fell within his allotted 115 acres, could be retained by her; the trial court granted a permanent injunction enforcing the exchange but declined to order eviction. The Appellant opposed the exchange, contending it was done without his consent and that the 2nd Respondent held the land in trust for her children, including himself. The 1st Respondent opposed the stay application, arguing the Appellant had failed to demonstrate substantial loss and was an indolent litigant. The court identified the sole issue as whether the Appellant satisfied the requirements for stay. It held that the Appellant failed to demonstrate substantial loss because his claimed entitlement of 60 acres could not be located pending distribution of the estate, and that a delay of about 45 days in filing the application was unexplained; awaiting certified proceedings was not a valid excuse since they need not accompany a stay application. Security did not therefore fall for consideration. The motion was dismissed with costs in the appeal.

Key legal issues

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01

Whether the Appellant demonstrated substantial loss

Holding

No - the location of the Appellant's claimed entitlement of 60 acres is incapable of ascertainment pending distribution of the estate, so he cannot show he will suffer substantial loss over the disputed 5 acres

Reasoning

The land is undistributed estate property. The Appellant's own argument that no one's portion can be identified before distribution undermines his claim to the 5 acres he occupies. He could still receive his claimed 60 acres without the disputed 5 acres, so no substantial loss was shown.

p. 3
02

Whether the application was made without undue delay

Holding

No - there was an unexplained delay of about 45 days between delivery of judgment on 18.08.2021 and filing on 30.09.2021

Reasoning

The Appellant offered no explanation for the delay until the Respondents raised it, then claimed he was awaiting copies of proceedings and judgment. The court rejected this because certified proceedings are not required to accompany a stay application.

p. 4
03

Whether security for due performance needed consideration

Holding

No - having failed the first two requirements, it was unnecessary to consider security

Reasoning

Security is only considered once substantial loss and absence of undue delay are demonstrated. Both those limbs having failed, the enquiry on security fell away.

p. 4

Legal principles established

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  • Under Order 42 rule 6(2), an applicant for stay pending appeal must demonstrate substantial loss, that the application was made without undue delay, and that security for due performance of the decree has been provided
  • There is no legal requirement for copies of certified proceedings to be filed together with an application for stay of execution

Court orders

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  1. 1.The Appellant's notice of motion dated September 29, 2021 is hereby dismissed
  2. 2.Costs shall be costs in the appeal

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 42 rule 6 (including rule 6(2))
On appeal from
Trial court (not specified in the ruling)
Suit in which plaint was dated June 28, 2011
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) and Order 42 rule 6 of the Civil Procedure Rules, 2010

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, "Njoroge v Njoroge & 2 others (Environment and Land Appeal E014 of 2021) [2022] KEELC 2322 (KLR)", Case Analysis (2022). Not stated in the ruling (memorandum of appeal dated 02.09.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2322/eng@2022-05-19

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