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ELCAllowedEnvironment and Land Appeal E014 of 2023· [2023] KEELC 18797 (KLR)

Kitoto & another v Akuko & another (Sued as the legal representatives of the Estate of Joseph Akuko Nyamiri and Alice Osuri Akuko - Deceased)

Environment and Land Court
13 July 2023
SOS. O. Okong'o
1,492 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kisumu court paused enforcement of a land judgment because the winning side could sell the property before the appeal was heard.

What this practically means

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Executive summary

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This is a ruling by S.O. Okong'o, J of the Environment and Land Court at Kisumu on the Appellants' Notice of Motion dated March 17, 2023 seeking a stay of execution of the judgment and decree of Hon W.K. Onkunya, SRM delivered on February 17, 2023 in Kisumu CMCELC No 442 of 2018, pending the hearing of the present appeal. In the lower court, the Respondents, as legal representatives of the estates of Joseph Akuko Nyamiri and Alice Osuri Akuko, successfully challenged the transfer of Title No Kisumu/Wathorego/1898 to the 1st Appellant and its subsequent sale to the 2nd Appellant, alleging fraud and illegality. The lower court cancelled the Appellants' registration, directed reversion of the property to Joseph's name, and awarded costs to the Respondents. The Appellants closed their case without tendering evidence. The application, brought under Order 42 rule 6(1) and (2) of the Civil Procedure Rules, was opposed on the ground that the conditions for stay were not met and that the Appellants' failure to adduce evidence was self-inflicted. Applying Kenya Shell Limited v Karuga, the court found that the 2nd Appellant, who had held title for about 12 years, risked losing the property permanently if it reverted to the Respondents' father's name and was disposed of to third parties, establishing substantial loss. The Appellants' willingness to furnish security satisfied the second condition. The court allowed the application in terms of prayer 3, directed that the existing Restriction on the title remain in force pending the appeal, ordered a deposit of Kshs 500,000/- as security within 60 days in default of which the stay would stand discharged, and made costs of the application costs in the cause.

Key legal issues

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01

Whether the Appellants demonstrated substantial loss to justify a stay of execution

Holding

Substantial loss was established because the 2nd Appellant risked losing the suit property permanently if it was reverted to the Respondents' deceased father's name and disposed of to third parties

Reasoning

The court noted the 2nd Appellant had held registered title for about 12 years before the suit. The lower court ordered cancellation of that title and reversion to Joseph. Once reversion occurred, the Respondents as legal representatives could dispose of the property to third parties, putting it beyond the 2nd Appellant's reach and rendering any successful appeal nugatory.

p. 3
02

Whether the Appellants offered adequate security

Holding

The Appellants' stated willingness to abide by any security order satisfied the condition, and the court fixed security at Kshs 500,000/-

Reasoning

Order 42 rule 6(2)(b) requires security for due performance of the decree. The Appellants' advocate averred they were willing to abide by any condition the court imposed. The court accepted this and quantified security as a deposit of Kshs 500,000/- in a joint interest-earning account, with the stay standing discharged in default.

p. 3

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution; without evidence of substantial loss a stay should rarely issue

Court orders

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  1. 1.Stay of execution of the judgment and decree of the lower court granted in terms of prayer 3 of the Notice of Motion dated March 17, 2023
  2. 2.The Restriction registered against the title of the suit property by the Land Registrar on February 12, 2007 as entry No 7 shall remain in force to preserve the suit property pending the hearing and determination of the appeal or further orders
  3. 3.Appellants to deposit Kshs 500,000/- in an interest-earning bank account in the joint names of the advocates on record within 60 days, in default of which the stay shall stand discharged without further reference to the court
  4. 4.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1) and (2)

Cases cited (1)

  • Kenya Shell Limited v Karuga
    (1982 – 1988) I KAR 1018

    Substantial loss is the cornerstone of the jurisdiction to grant a stay; without evidence of substantial loss a stay should rarely issue

On appeal from
Chief Magistrate's Court at Kisumu
Kisumu CMCELC No 442 of 2018
Jurisdiction invoked
Order 42 rule 6(1) and (2) of the Civil Procedure Rules (appellate jurisdiction of the Environment and Land Court)

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, "Kitoto & another v Akuko & another (Sued as the legal representatives of the Estate of Joseph Akuko Nyamiri and Alice Osuri Akuko - Deceased)", Case Analysis (2023). Environment and Land Appeal E014 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18797/eng@2023-07-13

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