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ELCAllowedEnvironment and Land Appeal E020 of 2022· [2023] KEELC 18674 (KLR)

Moses Nguthuko Kabiru & another v John Baru Moses

Environment and Land Court
14 July 2023
1,060 words in judgment
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The bottom line

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Kenya's Environment and Land Court paused enforcement of a land judgment, letting the current owners keep possession while their appeal is decided.

What this practically means

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Executive summary

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This is a ruling by J. O. Olola, J of the Environment and Land Court at Nyeri on a Notice of Motion dated July 18, 2022 by the two appellants seeking stay of execution of the judgment delivered on June 21, 2022 in Mukurweini PMELC Case No. 2 of 2020, pending the hearing and determination of their appeal. In the suit below, the respondent had sought a declaration that title No. Githi/Muthambi/370, registered in the name of the deceased Kabiru s/o Nguthuko, be held in trust for him, dissolution of the trust, cancellation of the title and registration in his name absolutely. The trial magistrate, D. K. Matutu, P.M, found the land was clan and family land registered in the appellants' father's name in trust for the respondent and his family. The respondent opposed the stay application, denying unjust enrichment and asserting he would suffer continued prejudice as the appellants occupied the land. Applying the principles in RWW v EKW and Vishram Ravji Halai v Thornton & Turpin, the court found the memorandum of appeal raised triable grounds on whether the 1959 registration and 1971 title issuance were in trust for the respondent, and that the appellants' long possession and development of the land meant registration of the respondent as sole proprietor would occasion great prejudice. The court allowed the motion in terms of Prayer No. 4, maintaining the suit property in its current status pending the appeal, with costs of the application in the appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

Yes - the memorandum of appeal raises triable grounds, including whether the 1959 registration and 1971 issuance of title to the appellants' father was in trust for the respondent.

Reasoning

The court undertook a cursory look at the memorandum of appeal dated July 18, 2022 and found the grounds raised therein triable, requiring investigation of the trust question concerning the suit property's registration history.

p. 2
02

Whether substantial loss would be occasioned absent stay

Holding

Yes - the appellants have long been in possession and developed the suit property; registering the respondent as sole proprietor would occasion great prejudice.

Reasoning

The court found the appellants had been in possession of the suit property and had developed it for a long period, so registration of the respondent as sole proprietor would occasion great prejudice, satisfying the substantial loss threshold.

p. 3
03

Whether stay should issue to preserve the subject matter

Holding

Yes - maintaining the status quo pending appeal is just and proper.

Reasoning

Balancing the appellants' undoubted right of appeal against the respondent's judgment, the court was persuaded that preserving the subject matter required maintaining the suit property in its current status pending the appeal's determination.

p. 3

Legal principles established

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  • Stay of execution pending appeal preserves the subject matter so a successful appeal is not rendered nugatory, balanced against the judgment creditor's right to fruits of judgment and absence of uncompensatable prejudice.
  • Under Order 42 Rule 6, stay requires sufficient cause, substantial loss and furnishing of security.

Court orders

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  1. 1.Stay of execution of the judgment delivered on June 21, 2022 in Mukurweini PMELC Case No. 2 of 2020 granted in terms of Prayer No. 4 of the Motion dated July 18, 2022, pending hearing and determination of the appeal
  2. 2.Costs of the application shall be in the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 41 Rule 6 (now Order 42 Rule 6)

Cases cited (2)

  • RWW v EKW
    [2019] eKLR

    Purpose of stay of execution pending appeal - preserving subject matter and weighing appellant's rights against the judgment holder's fruits of judgment.

  • Vishram Ravji Halai v Thornton & Turpin
    [1990] KLR 365

    Conditions for stay under Order 42 Rule 6: sufficient cause, substantial loss and furnishing security.

On appeal from
Magistrates' Court (Mukurweini)
Mukurweini PMELC Case No. 2 of 2020
Jurisdiction invoked
Order 42 Rule 6 of the 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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Cite this brief

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Cite this brief

Caselaw, "Moses Nguthuko Kabiru & another v John Baru Moses", Case Analysis (2023). Environment and Land Appeal E020 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18674/eng@2023-07-14

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