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ELCAllowedEnvironment and Land Appeal E028 of 2022· [2023] KEELC 18268 (KLR)

Minju v Tagi & 4 others

Environment and Land Court
15 June 2023
LKLC Komingoi
1,614 words in judgment
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The bottom line

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The Environment and Land Court in Kajiado paused enforcement of a land judgment, but only because the appellant deposited Kshs 300,000 as security within 45 days.

What this practically means

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Executive summary

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This is a ruling by LC Komingoi J of the Environment and Land Court at Kajiado on a Notice of Motion dated July 4, 2022 by the Appellant, Elvis Maina Minju, seeking stay of execution of the judgment and decree of IM Kahuya, Principal Magistrate, delivered on June 2, 2022, pending the hearing and determination of his appeal. The application was brought under section 63, sections 1, 1A and 3A of the Civil Procedure Act and Orders 42 and 51 of the Civil Procedure Rules. It was opposed by the 1st Respondent, Julia Jebet Tagi, by a replying affidavit and grounds of opposition; the 2nd to 5th Respondents filed no responses. The dispute concerns land parcel Kajiado/Kitengela/3428: the Appellant claims to hold a title issued on November 13, 1991 and alleges the 2nd Respondent fraudulently obtained a transfer and passed it on to the 1st Respondent, who was therefore not a bona fide purchaser for value. The 1st Respondent relied on green card entries showing her as registered proprietor and argued the Appellant failed to particularise or prove substantial loss. Framing two issues - whether the stay threshold was met and costs - the court applied Order 42 rule 6(2) and the principles in Butt v Rent Restriction Tribunal and Feissal Amin JanMohammed. It found the application was made without unreasonable delay and that substantial loss was demonstrated because lifting the restriction could allow the charged property to be disposed of to third parties, rendering the appeal nugatory. Stay was granted on condition that the Appellant deposit Kshs 300,000 as security in a joint interest-earning account within 45 days, failing which the stay lapses automatically; costs of the application were ordered to abide the outcome of the appeal.

Key legal issues

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01

Whether the application met the threshold for stay of execution pending appeal

Holding

The court found the application was brought without unreasonable delay and that the appellant demonstrated substantial loss since lifting the restriction could allow the suit property to be disposed of to third parties, rendering the appeal nugatory.

Reasoning

The court applied Order 42 rule 6(2) conditions. It accepted the appellant's claim that his 1991 title was first in time and that the 1st Respondent could not be a bona fide purchaser because her transferor was a fraudster. The property was already charged to the 5th Respondent, who might dispose of it to third parties, so substantial loss was demonstrated. Security was imposed as a condition.

02

Costs of the application

Holding

Costs were ordered to abide the outcome of the appeal rather than being awarded to either party immediately.

Reasoning

Having found merit in the application, the court granted stay on conditions and deferred the question of costs, tying it to the final result of the appeal.

p. 4

Legal principles established

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  • Stay of execution pending appeal requires substantial loss, no unreasonable delay and security for due performance of the decree

Court orders

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  1. 1.Stay of execution of the judgment and decree issued on June 2, 2022 by IM Kahuya Principal Magistrate and all consequential orders pending the hearing and determination of the Appeal
  2. 2.Appellant to deposit Kshs 300,000 as security for costs in a joint interest-earning account in the name of his counsel and the Respondent within forty-five (45) days from the date of the Ruling, failing which the stay lapses automatically
  3. 3.Costs of the application to abide the outcome of the Appeal

Authorities

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Legislation

  • Civil Procedure ActSection 63
  • Civil Procedure ActSections 1, 1A, 3A
  • Civil Procedure RulesOrder 42 rule 6(2)
  • Civil Procedure RulesOrder 51

Cases cited (7)

  • Lawrence P. Mukiri Mungai v Attorney General & 4 Others

    Sufficient cause for stay; protection of a registered owner alleging fraud

  • Christine Kavenge Ndavi vs. Davis George Njoroge Muniu & another [2021] eKLR
    [2021] eKLR

    Priority of an earlier title over a later one

  • Nicholas Mutuku Mwasuna v Patricia Mueni Kilonzo [2022] eKLR
    [2022] eKLR

    Applicant must particularise the loss that may result if stay is not granted

  • Machira t/a Machira & Co. Advocates v East African Standard [2002] eKLR
    [2002] eKLR

    Need to prove substantial loss, not merely assert it

  • James Wangalwa & Another v Agnes Naliaka Cheseto [2021] eKLR
    [2021] eKLR

    Particularisation and evidencing of substantial loss

  • Feissal Amin JanMohammed t/a Dunvia Forwaders v Shami Trading Co. Ltd [2014] eKLR
    [2014] eKLR

    Stay granted where substantial loss, no unreasonable delay and proper security are demonstrated

  • Butt v Rent Restriction Tribunal [1982] KLR 447
    [1982] KLR 447

    Discretionary principles for granting stay so as not to render an appeal nugatory

On appeal from
Principal Magistrate's Court
Jurisdiction invoked
Section 63 of the Civil Procedure Act (Cap 21); Order 42 rule 6 and Order 51 of the Civil Procedure Rules; sections 1, 1A and 3A 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, "Minju v Tagi & 4 others", Case Analysis (2023). Environment and Land Appeal E028 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18268/eng@2023-06-15

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