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ELCPartially AllowedNakuru Chief Magistrate's Court Civil Appeal arising from CMCC No. 307 of 2019 (ruling dated 22/09/2022)· [2023] KEELC 937 (KLR)

Kaiganira v Wangati (Environment and Land Appeal E36 of 2022) [2023] KEELC 937 (KLR)

Environment and Land Court of Kenya
21 February 2023
3,804 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Nakuru court froze a land consent order until an appeal is heard, but confirmed you cannot stay a ruling that merely dismisses a review application.

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 Nakuru (Mwangi Njoroge J) on the appellant's Notice of Motion dated 17/10/2022 arising from an intended appeal against the ruling of the Chief Magistrate's Court at Nakuru (CMCC No. 307 of 2019, B. Ochieng) delivered on 22/09/2022, which dismissed the appellant's review application dated 19/08/2021. The appellant, who had surrendered title to land registered in the respondent's name as collateral for a loan he was repaying, sought leave to appeal, stay of execution, and revival of the dismissed review application. The court held that the appeal having been filed within the 30 days allowed by Section 79G of the Civil Procedure Act, no leave was necessary. On stay, applying KCB v Tamarind Meadows, the court found the dismissal of the review application was a negative order incapable of execution save for costs and thus incapable of being stayed, with no substantial loss arising from it. However, taking a wider view of the record, the court found a genuine triable issue as to whether the consent of 13/03/2020, adopted on 20/05/2020 without a hearing on merits, could be executed as it is, given the appellant's unrebutted allegations of illness, ambiguity, non-disclosure of valuations and absence at adoption, and the developments worth millions on the suit land. Balancing the parties' positions, the court granted status quo and a stay of execution of the consent pending the hearing of the appeal, refused to allow the review application as that would touch the appeal's merits, directed the Deputy Registrar to call for the lower court file, and set the appeal for an online mention on 15/3/2023. No express costs order was made.

Key legal issues

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01

Whether stay of execution lies over a ruling dismissing a review application

Holding

No - the dismissal of a review application is a negative order incapable of execution save for costs, and therefore incapable of being stayed; substantial loss does not arise.

Reasoning

The trial magistrate's ruling of 22/09/2022 merely dismissed the appellant's review application dated 19/08/2021. It did not order any party to do or refrain from doing anything. Following KCB v Tamarind Meadows, Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah and Western College of Arts & Applied Sciences v Oranga, such a negative order leaves the applicant in the position he was in before coming to court, so no substantial loss can arise and stay cannot issue over it.

p. 5
02

Whether the consent order dated 13/03/2020 and adopted on 20/05/2020 can be executed as it is

Holding

The executability of the consent is a triable issue sufficient to justify preserving the status quo pending appeal.

Reasoning

The consent was recorded without a hearing on merits and the appellant disputes it on grounds of illness, ambiguity, alleged non-disclosure of valuations and absence at its adoption, claims the respondent did not rebut. Given developments on land registered in the respondent's name but reportedly being financed by the appellant, the court weighed the respondent's remediable delay against the appellant's potentially irreversible loss and preserved the status quo.

p. 5
03

Whether leave to appeal out of time was necessary

Holding

No - the memorandum of appeal filed on 13/10/2022 was within the 30 days allowed by Section 79G of the Civil Procedure Act.

Reasoning

Section 79G requires appeals from subordinate courts to the High Court to be filed within thirty days of the order appealed against. The ruling was delivered on 22/09/2022 and the memorandum of appeal filed on 13/10/2022, which is within the period, so the proviso on admission out of time was not engaged and leave was unnecessary.

p. 3

Legal principles established

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  • A negative order, one which does not order any party to do or refrain from doing anything, is incapable of execution save in respect of costs, and is incapable of being stayed.
  • A court hearing a stay application may, without going into the merits of the appeal, preserve the status quo where the applicant stands to suffer serious loss should the appeal succeed long after execution has issued.

Court orders

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  1. 1.Stay of execution of the consent entered into on 20/05/2020 pending the hearing and determination of the appeal
  2. 2.Orders of status quo to be maintained pending the hearing and determination of the appeal
  3. 3.Refusal of leave to appeal since the appeal was filed within time
  4. 4.Refusal of the prayer to allow the Notice of Motion dated 19/08/2021 as it goes to the merits of the appeal
  5. 5.Deputy Registrar to call for and annex to the appeal record the lower court file in the case appealed from to enable admission and directions
  6. 6.Appeal to be mentioned online on 15/3/2023 by way of Microsoft Teams

Authorities

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Legislation

  • Constitution of KenyaArticles 159, 40, 23, 165, 258, 259
  • Civil Procedure ActSections 1A, 1B, 3A, 80, 79G
  • Civil Procedure Rules 2010Order 40 Rule 1, Order 42 Rule 6(2), Order 45 Rule 1, Order 51 Rules 1 and 3

Cases cited (13)

  • Rhoda Mukuma v John Abuoga
    [1988] eKLR
  • Absalom Dove v Tarbo Transporters
    [2013] eKLR
  • Jayesh Hasmukh Shah v Narin Haira and another
    [2015] eKLR
  • Noor Mohammed Abdullah v Ranchhodhbal J. Patel
    [1962] EA 448
  • Joseph Oduor Anode v Kenya Red Cross society
    [2012] eKLR
  • Butt v Rent Restriction Tribunal
    [1979]
  • Silverstein v Chesoni
    (2002)1 KLR 867
  • Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others
    [2016] eKLR
  • Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah
    [2008] eKLR
  • Western College of Arts & Applied Sciences v Oranga & Others
    [1976] KLR 63
  • Raymond M Omboga v Austine Pyan Maranga
  • Ikechukwu Anoke v CFC Stanbic Bank Limited
    [2018] eKLR
  • Siegfried Busch v MCSK
    [2013] eKLR
On appeal from
Chief Magistrate's Court at Nakuru
307 of 2019
Jurisdiction invoked
Articles 159, 40, 23, 165, 258 and 259 of the Constitution; Sections 1A, 1B, 3A & 80 of the Civil Procedure Act; Order 42 Rule 6 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, "Kaiganira v Wangati (Environment and Land Appeal E36 of 2022) [2023] KEELC 937 (KLR)", Case Analysis (2023). Nakuru Chief Magistrate's Court Civil Appeal arising from CMCC No. 307 of 2019 (ruling dated 22/09/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/937/eng@2023-02-21

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