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ELCPartially Allowed· [2022] KEELC 2477 (KLR)

Forward Agencies Limited & another v Kitangila Limited & 3 others (Environment & Land Case 282 of 2012 & 162 of 2015 (Consolidated)) [2022] KEELC 2477 (KLR)

Environment and Land Court
20 July 2022
ANA. NYUKURI
1,967 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan land court granted a conditional stay of execution: the losing defendant must deposit the title document in court within 21 days or the stay lapses.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (A. Nyukuri J) on a Notice of Motion dated December 15, 2021 by the 2nd Defendant seeking stay of execution of the judgment delivered by Angote J on December 2, 2021, and maintenance of status quo on L.R No. 10426/7 pending an intended appeal. The Applicant argued that judgment was delivered without notice to his counsel, that he was in actual possession as registered owner, and that execution would cancel his title, render the appeal nugatory and cause substantial loss. The Plaintiffs opposed, asserting they had been in possession since fencing the property in 2005, that the Applicant's counsel had notice of judgment delivery via the Microsoft Teams platform, and that the Applicant had shown no substantial loss, his real interest being a liquidated loan claim of Kshs. 10,000,000 against the 1st Defendant. Framing the sole issue as whether the Applicant met the Order 42 Rule 6 threshold, the court applied James Wangalwa v Cheseto and RWW v EKW. It found no evidence of the Applicant's possession, holding that the perimeter wall was erected by the Plaintiffs, and thus the claim of substantial loss was weak. Nonetheless, to preserve the substratum of the suit and balance the parties' interests, the court granted a conditional stay: the Applicant was to deposit the title document for L.R No. 10426/7 in court as security within 21 days, failing which the stay lapses. Each party was to bear its own costs of the application.

Key legal issues

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01

Whether the Applicant satisfied the conditions for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules

Holding

Stay granted conditionally: the court found no proof of the Applicant's possession or substantial loss but granted stay on terms (deposit of title document as security) to preserve the substratum of the suit and balance the parties' interests

Reasoning

The court applied Order 42 Rule 6(2), noting that stay requires substantial loss, no unreasonable delay and security. It found the Plaintiffs in possession, not the Applicant, and no evidence of the wall erected on December 4, 2021. Nonetheless, to preserve the suit's substratum and avoid altering the position pending appeal, it granted stay conditional on deposit of the title document within 21 days, failing which stay lapses.

p. 4
02

Possession of the suit property L.R No. 10426/7

Holding

The court found the Plaintiffs are in possession of the suit property; the perimeter wall was put up by the Plaintiffs, not by the Applicant

Reasoning

Both parties claimed possession. The Applicant relied on a photograph alleging the Plaintiffs commenced constructing a perimeter wall on December 4, 2021. The court found the wall was erected by the Plaintiffs in 2005 and found no evidence of the Applicant's possession at all.

p. 4

Legal principles established

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  • A court where a decree is appealed from may grant stay where substantial loss, absence of undue delay and security are demonstrated
  • Stay of execution pending appeal preserves the substratum of the suit while balancing the decree holder's right to the fruits of judgment with the judgment debtor's right of appeal

Court orders

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  1. 1.Stay of execution of the judgment delivered on December 2, 2021 granted pending determination of the intended appeal
  2. 2.2nd Defendant/Applicant to deposit in court the title document for parcel L.R No. 10426/7 as security for due performance of the decree within 21 days of the ruling, in default the order of stay shall lapse
  3. 3.Each party to bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2)
  • Evidence ActSection 106B

Cases cited (2)

  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
  • RWW v EKW
    [2019] eKLR
Jurisdiction invoked
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, "Forward Agencies Limited & another v Kitangila Limited & 3 others (Environment & Land Case 282 of 2012 & 162 of 2015 (Consolidated)) [2022] KEELC 2477 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2477/eng@2022-07-20

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