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ELCDismissedNot stated in the judgment· [2022] KEELC 3503 (KLR)

Nurbhai v Noorbhai (Environment & Land Case 306 of 2019) [2022] KEELC 3503 (KLR)

Environment and Land Court
21 July 2022
1,627 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to pause its orders requiring a property co-owner to account for rent, because he showed no real evidence of loss.

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 Nairobi on a notice of motion dated 19 March 2021 by the Defendant/Applicant seeking a stay of the proceedings and of the court's orders of 23 February 2021 pending his intended appeal to the Court of Appeal. The earlier orders required the Applicant to deposit rental income from the suit property into a joint interest-earning account and to render accounts of rental income and expenses from 2009. The parties are siblings and co-owners of the suit property, but the Applicant alone had been collecting rent without rendering accounts. The Applicant argued he would suffer substantial loss, citing the property's maintenance costs, KRA taxes, the age of the houses, inconsistent tenancy and the Covid-19 pandemic, and offered Kshs. 400,000 as security. The Respondent opposed, contending the receipts were ordinary property expenses, that the proposed security was a mockery given rents of Kshs. 100,000 to Kshs. 300,000 per house monthly, and that the application was designed to delay execution. Applying Order 42 Rule 6 of the Civil Procedure Rules and the overriding objective under Sections 1A and 1B of the Civil Procedure Act, and relying on Halai v Thornton & Turpin, Samvir Trustee, Sophinah Kalondu Mbiti and Michael Ntouthi Mitheu, the court held that the Applicant failed to demonstrate substantial loss, his claim being mere allegations; his exhibits were ordinary expenditures of property owners; and a stay would entrench his leverage over jointly owned property. The application was dismissed with costs to the plaintiff/respondent.

Key legal issues

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01

Whether the applicant demonstrated substantial loss to justify a stay pending appeal

Holding

No. The receipts produced related only to ordinary expenditures of property owners and did not demonstrate substantial loss; the claim amounted to mere allegations and assertions.

Reasoning

The court held that the applicant's documents (land rates, land rent, KRA payments, insurance, security, casuals and repairs) were ordinary expenditures and obligations of property owners, not proof of substantial loss. The order of 23 February 2021 was clear that expenses were to be factored into the statement of accounts, so compliance difficulties were not substantiated.

p. 3
02

Whether a stay would serve the overriding objective and balance the parties' interests

Holding

No. A stay would leave the applicant with leverage over jointly-owned property while continuing not to render accounts.

Reasoning

The parties are siblings and co-owners, but the applicant alone has been collecting rent since 2009 without rendering accounts. A stay would preserve his leverage over the suit property, contrary to the just, expeditious and proportionate resolution of disputes contemplated by Sections 1A and 1B of the Civil Procedure Act.

p. 3

Legal principles established

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  • An applicant for stay of execution must satisfy the three criteria under Order 42 Rule 6: substantial loss, application without unreasonable delay, and security; mere allegations of substantial loss without evidence are insufficient.
  • In granting or refusing a stay, the court must balance the interests of the applicant with those of the respondent in line with the overriding objective.

Court orders

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  1. 1.The application dated 19th March 2021 is dismissed with costs to the plaintiff/respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42, Rule 6(1) and (2)
  • Civil Procedure ActSections 1A and 1B

Cases cited (4)

  • Halai & another v Thornton & Turpin (1963) Ltd
    [1990] eKLR
  • Samvir Trustee Limited vs. Guardian Bank Limited Nairobi
    [2007] eKLR
  • Sophinah Kalondu Mbiti v Arun Mahendra Adalja & 3 others
    [2021] eKLR
  • Michael Ntouthi Mitheu v Abraham Kivondo Musau
    [2021] eKLR
Jurisdiction invoked
Order 42, Rule 6 of the Civil Procedure Rules - discretion of the court that made the order to stay 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, "Nurbhai v Noorbhai (Environment & Land Case 306 of 2019) [2022] KEELC 3503 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3503/eng@2022-07-21

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