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ELCAllowedNot stated in the judgment· [2023] KEELC 321 (KLR)

Wabwile & another v Lubakaya (Substituted by Philip Masinde Lubakaya) & 13 others (Environment & Land Case 22 of 2003) [2023] KEELC 321 (KLR)

Environment and Land Court
24 January 2023
2,556 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Busia Environment and Land Court paused enforcement of its land judgment pending appeal, protecting 56 families from eviction while the dispute continues.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Busia (Olao J) determines a notice of motion dated March 16, 2022 by the 1st and 4th to 14th defendants seeking stay of execution of the judgment delivered on February 17, 2022, which had cancelled several titles derived from land parcel East Bukusu/West Sang'alo/551 on grounds of fraud and breach of trust, and decreed registration of 18.8 acres in favour of the plaintiffs. The defendants argued they faced eviction and demolition of homes occupied by 56 families comprising 153 people, had filed their notice of appeal promptly, and were willing to abide by security. The plaintiffs opposed, contending the suit had been in court since 2003, the applicants were guilty of laches, and the application was designed to deny them the fruits of the decree. Applying Order 42 rule 6(2) and the authorities of Kenya Shell Ltd v Benjamin Kibiru and Vishram Ravji Halai v Thornton & Turpin, the court found all four conditions satisfied: the memorandum of appeal constituted sufficient cause, filing one month after judgment was not unreasonable delay, the defendants' undisputed occupation established substantial loss, and they offered to abide by security. The court also inferred from the plaintiffs' own (albeit late) notice of appeal that they were not averse to a stay. The court additionally exercised its power under section 99 of the Civil Procedure Act to amend the judgment, which had inadvertently omitted parcel 2978 from the disposal orders despite the finding of fraud. The application was allowed with each party bearing their own costs.

Key legal issues

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01

Conditions for stay of execution under Order 42 rule 6(2)

Holding

The applicants satisfied all the conditions: sufficient cause (memorandum of appeal filed), no unreasonable delay, willingness to abide by security, and substantial loss demonstrated by the risk of eviction of 56 families.

Reasoning

The court applied Order 42 rule 6(1) and (2) and the settled thresholds in Kenya Shell Ltd v Benjamin Kibiru and Vishram Ravji Halai v Thornton & Turpin. The memorandum of appeal constituted sufficient cause; filing one month after judgment was not unreasonable delay; occupation of the land by the defendants' families established substantial loss if eviction followed execution; and the applicants undertook to abide by security conditions. The plaintiffs' own notice of appeal showed they were not averse to a stay.

p. 5
02

Slip rule amendment under section 99 of the Civil Procedure Act

Holding

The court invoked section 99 to amend its judgment to include land parcel East Bukusu/West Sang'alo/2978, which had been inadvertently omitted from the disposal orders despite the finding of fraud covering it.

Reasoning

The judgment had found in paragraph 47 that the creation of parcels 2970 to 2979 was fraudulent, yet paragraphs 3 and 4 of the disposal orders omitted parcel 2978 registered in the name of the 14th defendant. The court held this was an inadvertent omission and exercised its power under section 99 of the Civil Procedure Act to correct the decree.

p. 6

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution pending appeal.
  • The conditions for granting a stay of execution pending appeal are sufficient cause, substantial loss, security, and application without unreasonable delay.

Court orders

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  1. 1.An order staying execution of the judgment of the court dated February 17, 2022 and all subsequent orders flowing therefrom pending the hearing and determination of the 1st, 4th to 14th defendants' appeal
  2. 2.An order restraining the 1st, 4th to 14th defendants from transferring, charging or in any other way alienating the land parcels No East Bukusu/West Sang'alo/2970, 2971, 2972, 2973, 2974, 2975, 2976 and 2978 pending the appeal or until further order
  3. 3.Amendment of the judgment dated February 17, 2022 and the resultant decree to include land parcel No East Bukusu/West Sang'alo/2978 in paragraphs 3 and 4 of the final disposal orders, the Deputy Registrar to advise parties accordingly
  4. 4.Each party to meet their own costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1) and (2)
  • Civil Procedure RulesOrder XLI rule 4 (as cited in Kenya Shell Ltd v Benjamin Kibiru)
  • Civil Procedure Actsection 99
  • Court of Appeal Rulesrule 75
  • Court of Appeal Rulesrule 4

Cases cited (2)

  • Kenya Shell Ltd v Benjamin Kibiru & Another
    1986 KLR 410
  • Vishram Ravji Halai & Another v Thornton & Turpin (1963) Ltd
    1990 KLR
Jurisdiction invoked
Order 42 rule 6(1) and (2) of the Civil Procedure Rules; section 99 of the Civil Procedure Act

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, "Wabwile & another v Lubakaya (Substituted by Philip Masinde Lubakaya) & 13 others (Environment & Land Case 22 of 2003) [2023] KEELC 321 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/321/eng@2023-01-24

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