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ELCPartially AllowedEnvironment & Land Case 197 of 2017· [2023] KEELC 20904 (KLR)
Akute v Ngigi & 2 others
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·~5 min to read original · ~4 min briefThe bottom line
#A Kajiado court paused execution of a land judgment, but only after the losing party paid Kshs.500,000 security and accepted paying the application costs.
What this practically means
#Executive summary
#This ruling by the Environment and Land Court at Kajiado (LC Komingoi, J) determined a Notice of Motion dated 8 May 2023 by the Plaintiff, Samson Teela Akute, seeking stay of execution of a judgment delivered by M.N. Gicheru, J, and an inhibition against any dealings in parcel Kajiado/Dalalekutuk/1320 pending an intended appeal. The application, brought under Order 51 rule 1 and Order 42 rule 6 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and Articles 50 and 159 of the Constitution, was opposed by the 1st Defendant through a replying affidavit and by the 2nd Defendant through grounds of opposition; parties canvassed it by written submissions. The court framed two issues: whether the application met the stay threshold, and costs. Applying Order 42 rule 6(2) and the Supreme Court's decision in Gatirau Peter Munya v Dickson Mwenda Kithinji, the court found the applicant had demonstrated substantial loss - both parties hold competing title deeds to the same parcel (the applicant's issued 14 August 1997, the 1st respondent's 29 May 1996) and the respondent may dispose of the property - and that the application was brought without undue delay. Relying also on In re Estate of Harish Chandra Hindocha and James Wangalwa v Agnes Naliaka Cheseto, the court granted stay of execution extended to the consequential decree, conditioned on the applicant depositing Kshs.500,000 in court as security within 45 days, failing which the stay lapses automatically. It further issued an inhibition through the Attorney General to the Chief Lands Registrar, the Chairperson of the National Land Commission and the Kajiado County Land Registrar prohibiting dealings in the parcel pending the appeal. Costs of the application were awarded against the Plaintiff/Applicant, contrary to his prayer that they abide the appeal.
Key legal issues
#01
Whether the applicant met the threshold for stay of execution pending appeal under Order 42 rule 6
Holding
The court found substantial loss demonstrated, the application brought without undue delay, and granted stay conditional on a security deposit of Kshs.500,000 within 45 days.
Reasoning
The court applied Order 42 rule 6(2), requiring substantial loss, absence of unreasonable delay and security. It found the applicant is registered owner of the suit land by a 1997 title while the 1st respondent holds a 1996 title, and that the respondent may dispose of the property, rendering the intended appeal nugatory. Relying on Munya and Hindocha, it granted stay and an inhibition, conditioned on a deposit of Kshs.500,000 as security.
p. 3
Legal principles established
#- Before granting stay of execution, the intending appellant must show the appeal is arguable and that the appeal would be rendered nugatory unless stay is granted.
- An appeal is rendered nugatory where failure to grant the relief sought would have irreversible or highly prejudicial consequential effects.
Court orders
#- 1.Stay of execution of the judgment delivered by Justice M.N. Gicheru pending the lodging, hearing and determination of the intended Appeal, extended to the consequential decree and any other orders arising from the judgment, on condition that the Plaintiff/Applicant deposits Kshs.500,000 in court as security for costs within forty-five (45) days, failing which the stay lapses automatically.
- 2.An inhibition/prohibition order directed through the Attorney General to the Chief Lands Registrar, the Chairperson of the National Land Commission and all subordinate staff, including the Registrar in charge of Kajiado County Land Registry, prohibiting any dealings in parcel Kajiado/Dalalekutuk/1320 pending hearing and determination of the intended Appeal.
- 3.Costs of the application to be borne by the Plaintiff/Applicant.
- Jurisdiction invoked
- Order 51 Rule (1) and Order 42 Rule (6) of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Articles 50 and 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Akute v Ngigi & 2 others", Case Analysis (2023). Environment & Land Case 197 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20904/eng@2023-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.