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ELCPartially AllowedNotice of Motion dated 21st September 2022 in Appeal against Kilgoris SPM ELC No. 123 of 2018· [2023] KEELC 33 (KLR)

Konchella v Kendeya & another (Environment and Land Appeal E007 of 2022) [2023] KEELC 33 (KLR)

Environment and Land Court
17 January 2023
3,009 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner won a stay of execution, keeping possession of his land of 70 years until his appeal against a transfer order is decided.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Kilgoris (Emmanuel M. Washe, J) on a Notice of Motion dated 21st September 2022 by the Appellant, seeking stay of execution of the judgment and decree in Kilgoris SPM ELC No. 123 of 2018 delivered on 25th August 2022, and a temporary injunction against the Respondents, pending appeal. The trial court had dismissed the Applicant's suit and allowed the Respondents' counter-claim, which sought a permanent injunction restraining the Applicant from dealing with L.R. No. Transmara/enanyieny/881 and an order compelling him to transfer 10 acres out of that parcel and 2 acres out of L.R. No. Transmara/enanyieny/882, based on a claimed 1991 purchase. The Applicant relied on Order 42 Rules 6(1), (2) and (6) of the Civil Procedure Rules, contending the Respondents' claim was time-barred, that the transactions breached the Land Control Act consent regime, and that he had occupied the land for 70 years. The Respondents opposed, arguing no decree was attached, no substantial loss was demonstrated, and no security was offered. The court found prayers 1-4 had lapsed and determined only prayers 5 and 6. Applying Samvir Trustee Ltd v Guardian Bank Ltd and Butt v Rent Restriction Tribunal, it held the application was filed timeously, that execution would substantially alter the Applicant's livelihood and property rights before his constitutional right of appeal was exhausted, constituting substantial loss, and that monetary security was impracticable in a land dispute. The court granted a stay of execution and a temporary injunction preserving the Applicant's occupation, with costs abiding the outcome of the substantive appeal.

Key legal issues

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01

Whether the Applicant satisfied the conditions in Order 42 Rule 6(2) for stay of execution pending appeal

Holding

Yes. The application was filed without undue delay (filed 26th September 2022, judgment having been delivered 25th August 2022), substantial loss was shown since implementation would alter the Applicant's occupation, livelihood and ownership of the suit properties, and the court fashioned non-monetary safeguards in lieu of security in a land dispute.

Reasoning

The court applied Order 42 Rule 6(2) as explained in Samvir Trustee Ltd v Guardian Bank Ltd and Butt v Rent Restriction Tribunal, weighing the Applicant's undoubted right of appeal against the Respondents' right to the fruits of judgment. It found the Applicant had lived on the land for 70 years, an undisputed fact, and that execution would render the appeal nugatory by dispossessing him. As monetary security is impracticable in land disputes, the court instead restrained alienation and new developments.

p. 6
02

Whether a temporary injunction should issue against the Respondents pending appeal

Holding

Yes. Flowing from the finding on substantial loss, the Respondents were restrained from interfering with the Applicant's quiet occupation and use of the suit properties pending appeal.

Reasoning

The court held that the second issue depended on the outcome of the first. Having found that implementation of the trial court's orders would cause substantial loss and alter the Applicant's livelihood and property rights before the appeal is heard, it was necessary also to preserve the status quo by prohibiting the Respondents from entering, cultivating, fencing or otherwise taking possession of the suit properties pending the appeal.

p. 6

Legal principles established

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  • A stay of execution will be granted where the application is made without unreasonable delay, substantial loss is demonstrated, and security is given; in a land dispute the court may craft non-monetary safeguards to preserve the substratum of the appeal.
  • Implementation of a judgment that would alter a party's occupation and ownership of land before the right of appeal is exhausted constitutes substantial loss justifying stay.

Court orders

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  1. 1.An order of stay of execution granted against execution of the judgment and decree in Kilgoris SPM ELC No. 123 of 2018 dated 25th August 2022, together with all consequential proceedings and/or orders, in particular the limbs relating to permanent injunction restraining the Appellant/Applicant from dealing with L.R. No. Transmara/enanyieny/881 and directing transfer of 10 acres and 2 acres respectively out of L.R. No. Transmara/enanyieny/881 & 882, pending the hearing and determination of the appeal.
  2. 2.An order of temporary injunction restraining the Respondents, their agents, servants and/or anyone claiming under them, from entering upon, trespassing onto, fencing, cultivating, grazing, interfering with the Appellant's occupation, building on and/or otherwise taking possession of L.R. No. Transmara/enanyieny/881 & 882 or any portion pending the hearing and determination of the appeal.
  3. 3.Costs to abide the outcome of the substantive appeal.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rules 6(1), (2) and (6)
  • Land Registration Act, No. 3 of 2012Sections 25, 26 and 28
  • Land Act, No. 6 of 2012Section 150
  • Environment and Land Court Act, 2011Sections 13(7), 19 and 26
  • Constitution of Kenya2010 (right of appeal)

Cases cited (2)

  • Samvir Trustee Limited vs. Guardian Bank Limited
    Nairobi (Milimani) HCCC 795 of 1997
  • Butt-versus- Rent Restriction Tribunal
    (1979) eKLR
On appeal from
Kilgoris Senior Principal Magistrate's Court (SPM ELC)
Kilgoris SPM ELC No. 123 of 2018
Jurisdiction invoked
Sections 13(7), 19 and 26 of the Environment and Land Court Act, 2011 and Order 42 Rules 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Konchella v Kendeya & another (Environment and Land Appeal E007 of 2022) [2023] KEELC 33 (KLR)", Case Analysis (2023). Notice of Motion dated 21st September 2022 in Appeal against Kilgoris SPM ELC No. 123 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/33/eng@2023-01-17

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