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ELCDismissedEnvironment & Land Case 292 of 2018· [2023] KEELC 17865 (KLR)

Kinuthia v Macharia (Donee of Power of Attorney - Ruth Wambui) & another

Environment and Land Court
8 June 2023
JKJ G Kemei
4,349 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed both sides' applications in a long-running land dispute, confirming that existing eviction orders remain valid and unappealed judgments must be obeyed.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika (J G Kemei, J) determined two competing applications arising from a long-running land dispute over parcel Thindigua 76/748. The Plaintiff, who had obtained a judgment on 7/4/2015 declaring him the rightful owner and eviction orders on 30/5/2018, sought an eviction and demolition order with police security. The Defendants, who occupy the land, sought injunctive orders restraining the Plaintiff from trespassing or alienating the property and a stay of execution of the 2015 decree and 2018 eviction orders, relying on a forensic document examiners report alleging that the Plaintiff's share certificate was forged, and raising alleged constitutional violations. The Court determined the Defendants' application first. It held the injunction prayer was res judicata, having been determined in the Court's Ruling of 23/7/2020 which had not been set aside, vacated or appealed. On stay of execution, applying Order 42 rule 6, the Court found no substantial loss demonstrated, an unexplained delay of eight years in filing, no pending appeal, and no security furnished. The Defendants' application was dismissed. The Court then found the Plaintiff's application moot, since the eviction orders it sought to enforce were already in force, and dismissed it as unmerited. Both applications were dismissed with each party bearing their own costs. The Court did not determine the forgery allegations or the constitutional questions raised, noting the matter was at execution stage with no subsisting proceedings.

Key legal issues

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01

Whether the Defendants' application for injunction and stay of execution was merited

Holding

The application was dismissed; the injunction prayer was res judicata and the stay prayer failed for lack of substantial loss, unexplained delay and absence of a pending appeal

Reasoning

The Court held the injunction prayer had been determined in the 23/7/2020 Ruling which remained in force. On stay, the Court applied Order 42 rule 6, finding the application filed 8 years after the orders sought to be stayed, with no explanation for delay, no demonstration of substantial loss, and no pending appeal. The forensic report alleging forgery did not displace the subsisting judgment.

p. 9
02

Whether the Plaintiff's application for eviction and demolition orders was merited

Holding

The application was dismissed as moot because the eviction orders of 30/5/2018 issued pursuant to the decree of 7/4/2015 were already in force and had not been set aside, vacated or appealed

Reasoning

The Court noted the judgment of 7/4/15 declared the Plaintiff the rightful owner and ordered the Defendants to vacate within 90 days, and eviction orders were issued on 30/5/18. Those orders remained valid and unappealed, so the Plaintiff's application to enforce them was overtaken by events and dismissed.

p. 9

Legal principles established

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  • An application for stay of execution under Order 42 rule 6 requires establishment of substantial loss, timely filing without unreasonable delay, and furnishing of security
  • A prayer already heard and determined by a competent court in a ruling not set aside, vacated or appealed is res judicata
  • Execution of a valid decree cannot be stayed where no appeal or proceedings are pending

Court orders

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  1. 1.The Plaintiff's application dated 27/7/2021 is unmerited and is dismissed
  2. 2.The Defendants' application dated 22/12/2021 is unmerited and is dismissed
  3. 3.Each party to bear their own costs
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; applications brought under Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3, 3A and 63(e) 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, "Kinuthia v Macharia (Donee of Power of Attorney - Ruth Wambui) & another", Case Analysis (2023). Environment & Land Case 292 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17865/eng@2023-06-08

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