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ELCDismissedELC Appeal (Notice of Motion dated 29th November, 2021), Kerugoya· [2022] KEELC 3010 (KLR)

Muriuki v Kariuki (Environment and Land Appeal 21 of 2021) [2022] KEELC 3010 (KLR)

Environment and Land Court
27 May 2022
1,261 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause a land ruling because the applicant could not show she would suffer real, irreparable loss while her appeal was decided.

What this practically means

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Executive summary

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The appellant/applicant moved the Environment and Land Court at Kerugoya by Notice of Motion dated 29th November 2021 seeking a stay of execution of the decree of the lower court (Wang'guru PMELC No. 29 of 2019, judgment delivered 1st November 2021) pending appeal, or alternatively access to Rice Holding No. 3232A Wamumu Section to harvest paddy she said was ready. The suit property is a rice holding owned by the National Irrigation Authority; her suit against the respondent had been dismissed and his counterclaim, including an injunction restraining her from the holding, allowed. The respondent opposed, asserting the applicant had no right to the holding after forgery findings, had already secretly harvested the paddy, and had shown no substantial loss. Applying Order 42 Rule 6(2) CPR, the court found the application filed within a reasonable time (29 days), and the applicant's sworn undertaking sufficed as security. However, the court held the applicant failed to demonstrate substantial loss, the cornerstone of a stay: the property is public property and would revert to her if the appeal succeeded, so the appeal would not be rendered nugatory. Further, the National Irrigation Authority, the registered owner, was not joined, and no order could issue against a party or its property without a hearing. The motion was dismissed with costs on 27th May 2022.

Key legal issues

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01

Whether the application was filed without unreasonable delay

Holding

The application was filed 29 days after the impugned judgment, which the court found was not unreasonable

Reasoning

The judgment and decree were delivered on 1st November 2021 and the application filed on 30th November 2021. The court measured the delay at 29 days (described as three weeks) and concluded this period was not unreasonable, satisfying the first limb of Order 42 Rule 6(2).

p. 3
02

Whether the applicant demonstrated substantial loss

Holding

The applicant failed to demonstrate substantial loss, the cornerstone of a stay application, and the appeal would not be rendered nugatory since the suit property is public property that would revert to her

Reasoning

The court noted the suit rice holding is public property owned by the National Irrigation Authority, and the respondent is only a licensee. Should the appeal succeed, the property would revert to the applicant, so the appeal would not be rendered nugatory. The applicant's claim of losing the holding and ripe paddy did not establish substantial loss.

p. 3
03

Whether injunctive orders could issue over property owned by a non-party

Holding

No; the National Irrigation Authority, the registered owner of the suit property, was not joined, and orders cannot issue against a party or its property without a hearing

Reasoning

The court observed that the National Irrigation Authority, registered as owner of the rice holding, was not a party to the suit. Since an order cannot issue against a party or its property without being heard, the applicant could not seek injunctive orders or access to the property without joining the registered owner.

p. 3
04

Whether the applicant's undertaking to abide by terms amounted to security

Holding

The court was satisfied the applicant's sworn averment that she was willing to abide by any terms was sufficient undertaking as security

Reasoning

On the third ingredient, the applicant deposed she was ready and willing to abide by any terms the court might impose. The court accepted this sworn averment as sufficient undertaking for security for due performance of the decree, though the application nonetheless failed on substantial loss.

p. 3

Legal principles established

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  • The three ingredients for a stay of execution pending appeal under Order 42 Rule 6 are substantial loss, absence of unreasonable delay, and security for due performance of the decree, with substantial loss being the cornerstone.
  • An injunctive order cannot issue against a party's property where that party has not been joined and heard.

Court orders

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  1. 1.The Notice of Motion dated 29th November, 2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
On appeal from
Wang'guru Principal Magistrate's Court (PMELC)
PMELC No. 29 of 2019
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution 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, "Muriuki v Kariuki (Environment and Land Appeal 21 of 2021) [2022] KEELC 3010 (KLR)", Case Analysis (2022). ELC Appeal (Notice of Motion dated 29th November, 2021), Kerugoya. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3010/eng@2022-05-27

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