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ELCDismissedEnvironment and Land Miscellaneous Application E013 of 2022· [2022] KEELC 14660 (KLR)

Gitonga & another v District Land Adjudication and Settlement Officer Igamba Ng'ombe Sub-County & 3 others; Riungu (Interested Party)

Environment and Land Court
9 November 2022
CYC. K. Yano
3,460 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 appeal decision because the applicants could not prove, with evidence, the losses they claimed.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Chuka (C. K. Yano, J) determined an application dated 5 May 2022 in which Fredrick Gitonga and M'ngereni Mathaiya sought orders that leave granted on 9 May 2022 to apply for judicial review (certiorari and prohibition) against the Minister's decision in Appeal to the Minister Case No 124 of 2018, delivered on 1 April 2022 and certified on 13 April 2022, do operate as a stay of those proceedings pending determination of the judicial review suit. The respondents opposed via grounds of opposition, contending the application was defective, that concluded proceedings cannot be stayed, and that no substantial loss was demonstrated. The applicants relied on Order 42 Rule 6 authorities (RWW v EKW, Butt, Kenya Shell, Machira) to argue substantial loss from the interested party's alleged cutting of trees, removal of beehives and burning of charcoal, and denied delay. The respondents relied on Taib A. Taib, R v Capital Markets Authority ex parte Kivai, Kimeli v Barmasai, Machira, Gikanga and Kalya Soi. The court framed one issue: whether leave should operate as stay. Applying Order 53 Rule 1(4) and the Wandayi principles, it found the 34-day filing delay was not inordinate, but held the applicants failed to prove substantial loss, as the allegations of destruction were raised only in submissions with no supporting evidence, and submissions are not evidence. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether leave granted for judicial review should operate as stay of the Minister's concluded decision

Holding

The application was dismissed; the applicants failed to demonstrate substantial loss supported by evidence, and the decision had already been made and certified.

Reasoning

Order 53 Rule 1(4) empowers the court to direct that leave operate as stay, but the discretion is exercised judiciously. The applicants filed about 34 days after the decision, which was not inordinate delay. However, the crucial limb of substantial loss was not proved: allegations that the interested party cut trees, removed beehives and burnt charcoal were raised only in submissions with no supporting evidence. Submissions are not evidence, and where no tangible loss is shown the court will not grant a stay.

02

Whether the application was brought without unreasonable delay

Holding

The court found the application was filed timeously; a 34-day period was not inordinate delay.

Reasoning

The impugned decision was delivered on 1st April 2022 and the application filed on 6th May 2022 per payment records, a period of about 34 days. The court held this was not inordinate delay, rejecting the respondents' contention on delay.

Legal principles established

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  • Where the decision sought to be quashed has been implemented, leave ought not to operate as a stay since there may be nothing remaining to be stayed; stay is only efficacious where the decision has not been implemented or implementation is incomplete.
  • Submissions are not evidence; an applicant for stay must prove specific details and particulars of substantial loss to the satisfaction of the court.

Court orders

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  1. 1.The application dated May 5, 2022 seeking that leave operate as stay of proceedings of the Appeal to the Minister No 124 of 2018 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 53 Rule 1(4)

Cases cited (12)

  • RWW v EKW
    (2019) eKLR

    Purpose of a stay of execution order pending hearing and determination of a suit; security is discretionary

  • Butt v Rent Restriction Tribunal
    (1982) KLR 417

    Considerations in determining whether to grant or refuse stay of execution

  • Kenya Shell Limited v Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) KAR 1018

    Substantial loss is the cornerstone for granting stay

  • Machira t/a Machira & Co Advocates v East African Standard (No 2)
    (2002) eKLR 63

    Applicant for stay must prove specific details and particulars of loss

  • Taib A. Taib v The Minister of Local Government & others
    Mombasa HCMISCA 158 of 2006

    Purpose and discretionary nature of stay orders in judicial review proceedings

  • R v Capital Markets Authority ex parte Joseph Mumo Kivai & Another
    (2012) eKLR

    Judicial review is public law litigation; public interest relevant to stay orders

  • David Kipkoskei Kimeli v Titus Barmasai
    [2019] eKLR

    Applicant must establish the kind of substantial loss; occupation alone is not substantial loss

  • Peter Rugu Gikanga & another v Weston Gitonga & 10 others
    [2014] eKLR

    Residing on suit land is not enough; applicant must show substantial loss

  • Charles Wahome Gethi v Angela WA/R/MU Gethi
    Court of Appeal Civil Application No NAI 302 of 2007 UR 205/2007

    Applicants must go beyond residence and show substantial loss

  • Kalya Soi Farmers' Cooperative Society v Paul Kirui & another
    [2013] eKLR

    Equity will not grant remedies that would be in vain or unenforceable

  • James Opiyo Wandayi v Kenya National Assembly & 2 Others
    [2016] eKLR

    Principles for grant of leave operating as stay; stay ineffectual where decision already implemented

  • George Philip M. Wekulo v The Law Society of Kenya & Another
    Kakamega HCMISCA No 29 of 2005

    Stay may issue where implementation of decision is incomplete

Jurisdiction invoked
Order 53 Rule 1(4) of the Civil Procedure Rules (leave to apply for judicial review to operate as stay)

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, "Gitonga & another v District Land Adjudication and Settlement Officer Igamba Ng'ombe Sub-County & 3 others; Riungu (Interested Party)", Case Analysis (2022). Environment and Land Miscellaneous Application E013 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14660/eng@2022-11-09

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