Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedEnvironment and Land Appeal E002 of 2022· [2023] KEELC 19218 (KLR)

Suldana Habat Gerad v Monicah Nduta Njenga

Environment and Land Court
27 July 2023
2,812 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court halted demolition of buildings on disputed land, but only because the appellant agreed to deposit Kshs 300,000 as security within 45 days.

What this practically means

#

Executive summary

#
This is a ruling by LC Komingoi, J of the Environment and Land Court at Kajiado on a Notice of Motion dated December 13, 2022 by Suldana Habat Gerad, the Applicant, seeking stay of execution of the judgment of Hon. P. Achieng (SPM) in Ngong' ELC No. 120 of 2018 delivered in September 2022, which declared Monicah Nduta Njenga the rightful owner of Plot 725/Business Ole Kasasi trading centre, ordered the Applicant to vacate and to pull down her structures. The Applicant claimed she was allotted the property by the then County Council of Kajiado in 2006 and had built developments worth millions; she contended the trial judgment rested on an inconclusive County Surveyor's report confusing her plot with the Respondent's Plot 413. The Respondent opposed, asserting she purchased Plot 413 in 2002, that the Applicant trespassed in 2007 in breach of a temporary injunction, and that the application was filed late and was an abuse of process and forum shopping. The court framed a single issue: whether the conditions for stay under Order 42 rule 6(2) were satisfied. Applying the Supreme Court's Munya principles and the Court of Appeal's Hindocha and Kinyanjui decisions, it found the appeal arguable, that demolition of the developments would cause substantial, potentially irreversible loss, and that although the filing in Nairobi ELC was unexplained and unsatisfactory, the errors of previous advocates should not be visited on the client. Stay was granted on condition the Appellant deposits Kshs 300,000/= as security within 45 days, failing which the stay lapses; costs abide the appeal.

Key legal issues

#
01

Whether substantial loss would result if the judgment were executed

Holding

Yes - the Applicant's developments on the suit property would be demolished, an irreversible or highly prejudicial consequence rendering the appeal nugatory.

Reasoning

The court noted it was not in contention that the Applicant had undertaken developments which the trial court ordered pulled down. Applying the Hindocha and Kinyanjui tests, demolition would be irreversible or reversible only at considerable hardship or expense, satisfying the substantial-loss limb of Order 42 rule 6(2).

p. 5
02

Whether the appeal was arguable

Holding

Yes - the grounds, including that the plots were distinct and that the first-in-time principle was misapplied, were sufficient for interrogation and not frivolous.

Reasoning

The court reviewed the seven grounds of appeal, including that the Defendant was in possession of a plot distinct from the Plaintiff's and that there was no expert evidence the plots were one and the same, and associated itself with the Hindocha formulation of an arguable appeal.

p. 5
03

Whether the application was made without unreasonable delay

Holding

Although the filing in Nairobi ELC and the explanations given were unsatisfactory, the delay was attributable to previous advocates and should not prejudice the client.

Reasoning

The court found the reasons for filing the memorandum of appeal and application in Nairobi ELC rather than Kajiado indubitably unsatisfactory, but held that a change of advocates meant the errors of prior counsel should not be visited on the client, preserving the right to be heard.

04

Security for due performance

Holding

Stay granted on condition the Appellant deposits Kshs 300,000/= as security for costs within 45 days, failing which the stay lapses.

Reasoning

Order 42 rule 6(2)(b) requires security for due performance of the decree. The court fixed Kshs 300,000/= in a joint interest-earning account in the names of both counsel, with automatic lapse on default, balancing the Applicant's right of appeal with the Respondent's interest in the decree.

p. 6

Legal principles established

#
  • An arguable appeal need not be one that will succeed but one that is sufficient for interrogation by the court and not frivolous.
  • Errors and sins of previous advocates shall not be heaped upon the client or current advocate by denying the applicant an opportunity to be heard.

Court orders

#
  1. 1.Stay of execution of the judgment of Hon. P. Achieng SPM delivered on September 15, 2022, the decree 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 names of counsel for the Appellant and Respondent within forty-five (45) days from the date of the Ruling
  3. 3.In default of the deposit, the orders of stay shall automatically lapse
  4. 4.Costs to abide the outcome of the Appeal

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6(2)
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(b)

Cases cited (16)

  • RWW v EKW
    [2019] eKLR

    Purpose of stay pending appeal is to preserve the subject matter so the appeal is not rendered nugatory.

  • Marine vs Namijja & Another
    Civil App No. 93 of 1989 (Nairobi)

    Same purpose of stay of execution pending appeal.

  • HE vs SM
    [2020] eKLR

    Substantial loss - cited by applicant.

  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    [2012] eKLR

    Substantial loss in stay applications; also cited by respondent on triable issues.

  • Charles Kariuki Njuri v Francis Kimaru Rwara (suing as Administrator of Estate of Rwara Kimaru alias Benson Rwara Kimaru (Deceased)
    [2020] eKLR

    Substantial loss - cited by applicant.

  • Mukuma vs Abuoga
    (1988) KLR 645

    Substantial loss - cited by applicant.

  • Charles Wahome Gethi vs Angela Wairimu Gethi
    [2008] eKLR

    Substantial loss - cited by applicant.

  • Butt vs Rent Restriction Tribunal
    {1982} KLR 417

    Discretion to grant stay; also cited by respondent.

  • Aron C. Sharma vs Ashana Raikundalia T/A Rairundalia & Co. Advocates

    Offer of security for due performance of decree.

  • United Millers Ltd & Another v John Mangoro Njogu
    [2016] eKLR

    Applicant who voluntarily assumed risk should not seek solace from court.

  • Abdirahman Abdi also known as Abirahman Muhumed Abdi vs Safi Petroleum Products Ltd & 6 others

    Filing in wrong court/unsatisfactory explanation - cited by respondent.

  • Republic vs National Environment Tribunal, Ex Parte Palm Homes Limited & Another
    [2013] eKLR

    Status quo should not be maintained where applicant acted despite court order.

  • Republic vs Paul Kihara Kariuki, Attorney General & 2 others Ex Parte Law Society of Kenya
    [2020] eKLR

    Abuse of court process and forum shopping.

  • Gitarau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    (2014) eKLR

    Principles for stay: arguable appeal and appeal rendered nugatory.

  • In re Estate of Harish Chandra Hindocha (Deceased)
    [2021] eKLR

    Appeal rendered nugatory if consequences irreversible or highly prejudicial; arguable appeal need not be one that will succeed.

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & Others
    [2013] eKLR

    Whether appeal rendered nugatory depends on whether what is stayed is reversible or compensable in damages.

On appeal from
Senior Principal Magistrate's Court at Ngong'
ELC No. 120 of 2018
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from the Senior Principal Magistrate's Court; Order 42 rule 6 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Suldana Habat Gerad v Monicah Nduta Njenga", Case Analysis (2023). Environment and Land Appeal E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19218/eng@2023-07-27

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