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ELCPartially AllowedNyeri MELC Case No. 15 of 2018 (Appeal)· [2022] KEELC 3317 (KLR)

Kenya Electricity Transmission Company Limited & another v Gathirwa (Environment and Land Appeal E043 of 2021) [2022] KEELC 3317 (KLR)

Environment and Land Court
16 June 2022
JOJ. O. Olola
915 words in judgment
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The bottom line

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The Environment and Land Court in Nyeri paused enforcement of a Kshs.526,500 land compensation award, but only after KETRACO paid part and secured the rest.

What this practically means

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Executive summary

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By Notice of Motion dated 18th November 2021, Kenya Electricity Transmission Company Limited (KETRACO's transmission company) sought a stay of execution of a judgment of the Chief Magistrate's Court at Nyeri delivered on 21st October 2021, in which the Respondent, John Kariuki Gathirwa, was awarded Kshs.526,500/= as compensation for loss of use of his land over which the Applicant had constructed power lines. The Applicant, having lodged a Memorandum of Appeal, argued that execution would render the appeal nugatory and cause it substantial loss given uncertainty over the Respondent's financial means, and offered security. The Respondent opposed, asserting the Applicant was not candid about the dispute being over the compensation amount, and proposed release of the admitted amount with the balance held in a joint account. Relying on RWW -vs- EKW (2019) eKLR, Olola J reiterated that the power to grant stay is discretionary, aimed at preserving the subject matter so a successful appeal is not rendered nugatory, while balancing the decree holder's right to enjoy the fruits of judgment. Noting that the Applicant had earlier offered Kshs.210,600/= as proper compensation against the Kshs.650,000/= claimed, the court granted a conditional stay: the admitted sum of Kshs.210,600/= to be released forthwith to the Respondent, and the balance of Kshs.315,900/= deposited in an interest-earning account in the joint names of the parties' advocates within 45 days, pending determination of the appeal. Costs of the application were made costs in the appeal.

Key legal issues

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01

Stay of execution pending appeal

Holding

Stay granted on conditions: admitted portion of the decretal sum released to the decree holder and the balance deposited in a joint interest-earning account

Reasoning

The court applied the principle that stay is discretionary and preserves the subject matter so a successful appeal is not rendered nugatory, while protecting the decree holder's right to enjoy the fruits of judgment. Since the Applicant had admitted willingness to pay Kshs.210,600/= out of the Kshs.526,500/= decree, the court conditioned the stay on release of that amount and secure deposit of the balance within 45 days.

p. 3

Legal principles established

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  • The power to grant or refuse stay of execution is discretionary and requires balancing the appellant's right of appeal against the decree holder's right to enjoy the fruits of judgment.

Court orders

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  1. 1.Stay of execution of the judgment of 21st October 2021 granted on condition that Kshs.210,600/= be released forthwith to the Respondent
  2. 2.The balance of Kshs.315,900/= to be deposited in an interest-earning account in the joint names of the Advocates for the parties within 45 days, to await determination of the Appeal
  3. 3.Costs of the application to be in the Appeal

Authorities

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Cases cited (1)

  • RWW -vs- EKW
    (2019) eKLR
On appeal from
Magistrates Court (Nyeri)
Nyeri MELC Case No. 15 of 2018
Jurisdiction invoked
Appellate/stay jurisdiction of the Environment and Land Court over an appeal from the Magistrates' Court in a land matter

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, "Kenya Electricity Transmission Company Limited & another v Gathirwa (Environment and Land Appeal E043 of 2021) [2022] KEELC 3317 (KLR)", Case Analysis (2022). Nyeri MELC Case No. 15 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3317/eng@2022-06-16

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