Zumzum Investment Limited v Ndoro & 14 others (on Behalf of 821 others)
The bottom line
#Kenya's Environment and Land Court paused an eviction order affecting over 800 people until their appeal is heard.
What this practically means
#Executive summary
#Key legal issues
#Conditions for grant of stay of execution pending appeal under Order 42 rule 6
The applicants satisfied the conditions: no inordinate delay, substantial loss (over 800 people facing eviction and demolition of houses), and the appeal would be rendered nugatory without stay.
The court applied the settled principles from Order 42 rule 6(1) and the case law: substantial loss, absence of unreasonable delay, and security. Judgment was delivered September 27, 2022 and the application filed December 14, 2022, which the court found not to be inordinate delay. The 180-day vacate order meant eviction of over 800 people would cause irreparable loss and render any successful appeal nugatory.
Arguability of the intended appeal
The court was persuaded that if stay were not granted, the success of the appeal, were it to succeed, would be rendered nugatory.
Relying on Reliance Bank v Norlake Investments and Chris Munga N Bichange v Richard Nyagaka Tongi, the court required both limbs - an arguable appeal and that the appeal not be rendered nugatory - to be demonstrated. The court found the applicants had fulfilled the grounds and granted stay of the judgment pending appeal.
Legal principles established
#- An applicant for stay pending appeal must demonstrate substantial loss, that the application was made without unreasonable delay, and furnish security as ordered by the court.
- The right of appeal must be balanced against the plaintiff's right to enjoy the fruits of the judgment.
Court orders
#- 1.Stay of the judgment delivered in this matter on September 27, 2022 pending the hearing and determination of the appeal
- 2.Costs of the application to be in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 65 and 95 Civil Procedure Act; Order 42 Rule 6(1) and (2), Order 50 and Order 51 Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zumzum Investment Limited v Ndoro & 14 others (on Behalf of 821 others)", Case Analysis (2023). Environment & Land Case 242 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18114/eng@2023-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.