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ELCAllowed· [2023] KEELC 896 (KLR)

Webuye v Mangeni & another (Environment & Land Case 178 of 2010) [2023] KEELC 896 (KLR)

Environment and Land Court
14 February 2023
BOBoaz N. Olao
1,646 words in judgment
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The bottom line

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A Kenyan court paused execution of a land judgment pending appeal, but only after the appellants deposited the title deed as security.

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 the defendants' notice of motion dated December 5, 2022 seeking stay of execution of a judgment delivered by Omollo J on November 10, 2022, which declared that the plaintiff had acquired 2¼ acres of LR No Samia/bukangala 'A'/280 by adverse possession and awarded costs against the 1st defendant. The defendants lodged a notice of appeal on November 22, 2022 and argued that the suit land is the 2nd defendant's residence, that the plaintiff had never occupied it, and that the plaintiff might dispose of the land upon registration. The plaintiff opposed through grounds of opposition only, contending the decree reflected the status quo and no prejudice would be suffered. Applying Order 42 rule 6 of the Civil Procedure Rules and the Vishram Ravji Halai and Kenya Shell authorities, the court held that the notice of appeal constituted sufficient cause, a three-week delay was not inordinate, and - because the plaintiff filed no replying affidavit - the 2nd defendant's unrebuted sworn averments of substantial loss were taken as true. The court granted a conditional stay: the defendants were to deposit the original title together with duly executed transfer documents for 2¼ acres with the deputy registrar within 30 days, failing which the stay would lapse automatically. Costs were ordered to abide the appeal.

Key legal issues

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01

Conditions for stay of execution pending appeal

Holding

Applicant must show sufficient cause, substantial loss, offer security and move the court without unreasonable delay; all met here

Reasoning

Order 42 rule 6(1) and (2) fetters the court's discretion under three conditions as set out in Vishram Ravji Halai. The notice of appeal constitutes sufficient cause; a three-week delay is not inordinate; substantial loss was deponed to and unrebuted as the plaintiff filed only grounds of opposition; the court conditioned stay on security (deposit of title and transfer documents).

p. 3
02

Evidential weight of unrebuted sworn testimony against grounds of opposition

Holding

Grounds of opposition cannot rebut sworn averments; unchallenged affidavit evidence is taken as truth

Reasoning

The plaintiff relied on grounds of opposition rather than a replying affidavit. Citing Kennedy Otieno Odiyo, the court held that grounds of opposition address only issues of law and are general averments that do not respond to supporting affidavit evidence, so the 2nd defendant's averments on eviction and dissipation were taken as the true position.

p. 3

Legal principles established

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  • Grounds of opposition are general averments which cannot rebut allegations made on oath; unrebuted sworn evidence stands as truth

Court orders

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  1. 1.An order is issued staying the execution of the judgment dated November 10, 2022 and the subsequent decree pending the hearing and determination of the appeal.
  2. 2.The defendants shall deposit the original title to the land parcel No Samia/bukhangala/'A'/280 with the deputy registrar of this court together with duly executed transfer documents for the transfer of 2 ¼ acres out of the said land in favour of the plaintiff within 30 days from today.
  3. 3.The above documents shall remain in the safe custody of the deputy registrar until the appeal is heard and determined or until further orders by this court.
  4. 4.In default of (2) above, the stay order shall lapse automatically and the plaintiff shall be at liberty to execute the decree herein.
  5. 5.Costs shall abide by the appeal.

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 42 rule 6(1) and (2)
  • Civil Procedure RulesOrder XLI rule 4 (as referenced in Kenya Shell Ltd -v- Benjamin Kibiru)

Cases cited (4)

  • Vishram Ravji Halai & Another -v- Thornton & Turnpin (1963) Ltd
    1990 KLR 365
  • Kenya Shell Ltd -v- Benjamin Kibiru & Another
    1986 KLR 410
  • Daniel Kibet Mutai & 9 Others -v- Attorney General
  • Kennedy Otieno Odiyo & Others -v- Kenya Electricity Genereating Company Ltd
    2015 eKLR
On appeal from
Environment and Land Court (Busia)
Not stated
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 42 rule 6 of the Civil Procedure Rules

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, "Webuye v Mangeni & another (Environment & Land Case 178 of 2010) [2023] KEELC 896 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/896/eng@2023-02-14

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