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ELCPartially AllowedNot stated in the excerpt (application dated 14/01/2022, filed 18/01/2022)· [2022] KEELC 2983 (KLR)

Board of Trustees Kenya Good News Outreach Churches v Masinde Muliro Primary School (Environment & Land Case 160 of 2016) [2022] KEELC 2983 (KLR)

Environment and Land Court
21 June 2022
3,122 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court paused eviction against a church, but only after it deposits Kshs. 600,000 as security and files its appeal within 30 days.

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 Kitale (Fred Nyagaka, J) delivered on 21 June 2022 on an application dated 14 January 2022 by a church, the judgement-debtor, seeking stay of execution of a judgment entered against it on 10 November 2021, pending appeal to the Court of Appeal. The Applicant feared eviction from its place of worship, having annexed photographs of fencing of the plot by the Respondent. It offered title to land valued at Kshs. 5,000,000 as security. The Respondent opposed, arguing inordinate delay, absence of demonstrated substantial loss, insufficiency of the offered security (registered in a third party's name), the Applicant's claimed non-existence, lack of authority of the deponents, and the public interest in using the land for education under the Competency Based Curriculum; it nonetheless offered to license the Applicant's continued use of the 1/8 acre portion with its structure. Applying Order 42 Rule 6(1), (2) and (6), the court found the application filed within reasonable time given the notice of appeal filed six days after judgment, the change of advocates and the suspension of running of time under the Rules, and that no execution had commenced. On substantial loss, it held that eviction through lawful process is not per se substantial loss, but loss of congregants and lack of alternative premises justified stay, particularly in light of the Respondent's licensing offer. The offered title was held insufficient as it was registered in the name of Kennedy Wanakacha Simiyu without clear nexus to the Applicant. The court allowed the application on condition of a Kshs. 600,000 monetary deposit within 30 days, alternatively granted a 30-day temporary stay to negotiate a licence, and directed filing of the Record of Appeal within 30 days in default of which the stay would lapse.

Key legal issues

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01

Timeliness of the stay application

Holding

Filed within reasonable time given intervening circumstances and absence of execution proceedings

Reasoning

Judgment was delivered on 10/11/2021; Notice of Appeal filed six days later on 16/11/2021; the application filed on 18/01/2022 by a new firm of advocates. The court noted that time under the Rules stopped running for certain acts and that no execution proceedings had been commenced, concluding the delay was not unreasonable.

p. 4
02

Substantial loss

Holding

Eviction itself is not substantial loss, but loss of congregants and lack of alternative premises constitutes likely substantial loss

Reasoning

The court held that eviction resulting from a lawful process does not itself amount to substantial loss; the applicant must show the appeal would be rendered nugatory. However, given the Respondent's willingness to license the Applicant's continued use of the 1/8 acre portion, the court inferred lack of alternative premises and found substantial loss likely if stay was refused.

p. 5
03

Sufficiency of security

Holding

Title offered was insufficient as it belonged to a third-party trustee, not the Applicant; monetary security substituted

Reasoning

The title deposited was registered in the name of Kennedy Wanakacha Simiyu, not the Applicant. The court found no direct nexus between him and the Applicant; as trustees can be removed, the security could be exposed to change. The court instead directed a monetary deposit of Kshs. 600,000.00 as security, taking account of the Applicant's stated willingness to abide by conditions.

p. 6

Legal principles established

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  • An applicant for stay must satisfy the conjunctive requirements of Order 42 Rule 6: no unreasonable delay, substantial loss, and willingness to furnish security.
  • Security for stay need not be in the form of a money deposit; sufficiency is assessed case by case.
  • Submissions are not pleadings and cannot introduce issues for determination.

Court orders

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  1. 1.Application dated 14/01/2022 allowed on condition that the Applicant deposits Kshs. 600,000.00 in court as security within thirty (30) days from the date of the ruling, failing which the orders shall be discharged without further reference to the court
  2. 2.In the alternative, temporary stay of execution for thirty (30) days to allow the Applicant to negotiate with the Respondent to licence its use of the 1/8 acre portion with the structure pending the appeal
  3. 3.Applicant given thirty (30) days (inclusive of vacation days) to prepare, file and serve the Record of Appeal and take steps to prosecute the intended appeal, in default of which the stay lapses even if the security condition is fulfilled

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1), (2) and (6)

Cases cited (3)

  • Joseph Tireito -vs- Jacob Kisigat Arap Lagat & Another
    [2014] eKLR
  • RWW vs. EKW
    [2019] eKLR
  • Agnes Naliaka Cheseto
    [2012] eKLR
Jurisdiction invoked
Order 42 Rule 6(1), (2) and (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, "Board of Trustees Kenya Good News Outreach Churches v Masinde Muliro Primary School (Environment & Land Case 160 of 2016) [2022] KEELC 2983 (KLR)", Case Analysis (2022). Not stated in the excerpt (application dated 14/01/2022, filed 18/01/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2983/eng@2022-06-21

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