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Case Brief · caselaw.co.ke
ELCDismissedEnvironment and Land Appeal E011 of 2023· [2023] KEELC 16829 (KLR)

Olutukei v King'ori

Environment and Land Court
17 April 2023
2,165 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 lost his bid to pause an eviction on appeal because living on land for years doesn't count as enough harm to stop a court judgment.

What this practically means

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Executive summary

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The appellant, Nickson Dick Olutukei, moved the Environment and Land Court at Bungoma by Notice of Motion dated February 9, 2023 seeking stay of execution of an eviction order contained in the judgment of Hon G Adhiambo, PM in Kimilili PM-ELC 16 of 2019 delivered January 25, 2023, pending the hearing of his appeal. He argued he was the registered absolute proprietor, had occupied and developed the land since 2017, that the appeal raised serious questions of law, that the application was brought without delay, and that he was willing to furnish security. The respondent opposed, relying on surveyors' reports that the suit property fell within land parcel KIMILILI/KIMILILI/771 registered in the name of the County Council of Bungoma. The court applied the three conditions in Order 42 Rule 6(2) CPR. It found the application filed within about 14 days, not inordinate delay, and found the applicant's undertaking to abide by conditions satisfied the security limb. However, on substantial loss, it held that occupation, investment and structures over five years do not establish substantial loss after a full trial, and that the applicant failed to show the appeal would be rendered nugatory. Since all three conditions must be met sequentially, the application failed. The Notice of Motion was dismissed with costs.

Key legal issues

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01

Whether the application was brought without unreasonable delay

Holding

A period of about two weeks was not inordinate; the first condition was satisfied

Reasoning

The judgment was delivered on January 25, 2023 and the appeal and application were lodged on February 9, 2023. The court held that a period of two weeks was not inordinate delay, satisfying the first condition under Order 42 Rule 6(2).

p. 3
02

Whether the applicant would suffer substantial loss

Holding

No - occupation, investment and structures on the land do not amount to substantial loss after a full trial

Reasoning

Relying on Maisi Mwita v Damaris Wanjiku Njeri and James Wangalwa v Agnes Naliaka Cheseto, the court held that execution alone is not substantial loss; the applicant must show factors that would irreparably affect the essential core of the appeal and render it nugatory. Mere possession for five years after a full hearing does not suffice.

p. 4
03

Whether the applicant was willing to furnish security

Holding

Yes - the applicant's undertaking to abide by conditions satisfied the third condition

Reasoning

The applicant deposed at paragraph 11 of his supporting affidavit that he was willing to abide by any conditions set by the court, including furnishing security. On that undertaking the court found the third condition satisfied, though this could not cure failure on substantial loss.

Legal principles established

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  • An applicant for stay pending appeal under Order 42 Rule 6(2) must satisfy all three conditions sequentially
  • Long occupation and possession of land is not by itself a ground for stay where the trial court, after a full hearing, found the property to belong to the respondent

Court orders

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  1. 1.Notice of Motion application dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (8)

  • Peter Nakupang Lowar v Nautu Lowar
    (2022) eKLR

    stay of execution - substantial loss

  • Charles Kariuki Njiru v Francis Kimaru Rwaru (Suing as the Administrator of the estate of Rwara Kimaru alias Benson Rwara Kimaru (Deceased)
    (2020) eKLR

    stay of execution

  • Anthony Warui Wanjiru v David Niyibizi & Another
    (2020) eKLR

    security for non-monetary decrees

  • Sarah N Sakwa v Elizabeth Wamwanyi t/a Namukhosi Ltd & Another
    (2017) eKLR

    security

  • Praxades Okutoyi v Medical Practitioners & Dentists Board
    (2008) eKLR

    security

  • Maisi Mwita v Damaris Wanjiku Njeri
    (2016) eKLR

    substantial loss is the cornerstone of stay jurisdiction

  • James Wangalwa & Another v Agnes Naliaka Cheseto

    execution alone does not amount to substantial loss

  • Silverstein v Chesoni

    substantial loss to be prevented by preserving status quo

On appeal from
Principal Magistrate's Court at Kimilili
Kimilili PM-ELC 16 of 2019
Jurisdiction invoked
Order 42 Rule 6(2) Civil Procedure Rules - stay of execution pending appeal

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, "Olutukei v King'ori", Case Analysis (2023). Environment and Land Appeal E011 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16829/eng@2023-04-17

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