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ELCDismissedEnvironment & Land Case 170 of 2017· [2023] KEELC 21057 (KLR)

Jeizan & another v Bayusuf & 3 others

Environment and Land Court
18 October 2023
LNL.L. Naikuni
7,371 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to pause a land judgment because the applicants filed only a Notice of Appeal, offered no proof of loss, and gave no security.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (Naikuni J) determined a Notice of Motion dated 30th November 2021 by the Plaintiffs, Nuru Ali Jeizan and Anwar Mohammed Bayusuf Ltd, seeking stay of execution of the decree and judgment delivered on 18th November 2021 (which had dismissed their suit) and an interim injunction restraining the Defendants from evicting them from plot No MN/V/1966, pending an appeal. The Plaintiffs argued their advocate was properly on record under Order 9 Rule 9, that a Notice of Appeal had been filed within time, that their right to a fair hearing under Article 50(1) was infringed when their former advocate relied on witness statements without viva voce testimony, and that they would suffer substantial loss. The 1st Defendant/Respondent opposed, contending there was no Memorandum of Appeal, no arguable appeal, no infringement of fair hearing rights, and that the supporting affidavit breached Order 19(1). The Court framed three issues: whether stay pending appeal was merited, entitlement to reliefs, and costs. Applying Order 42 Rule 6, it held that a mere Notice of Appeal without a Memorandum does not establish an appeal; substantial loss was asserted without supporting evidence; and no security was provided, which is mandatory. Although the application was filed without delay, all other ingredients failed. The application was dismissed with each party bearing their own costs, the Court noting the matter was unopposed.

Key legal issues

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01

Whether stay of execution pending appeal was merited

Holding

Application dismissed - conditions under Order 42 Rule 6 not satisfied

Reasoning

The Court found only a Notice of Appeal was filed, with no Memorandum of Appeal, so it could not assess arguability. Substantial loss was asserted but not supported by documentary evidence. The application was filed within 12 days, so no inordinate delay, but no security was provided, which is mandatory. All ingredients failing, the application could not succeed.

p. 13
02

Whether the Applicants' right to a fair hearing was infringed

Holding

The Court declined to entertain this as it would amount to sitting on appeal over its own decision

Reasoning

The Court observed that the application largely justified why the 1st Plaintiff could not testify viva voce, addressing fair hearing issues under Articles 25(c) and 50(1). It held the Applicants were effectively asking the Court to reconsider its own judgment, which was a matter for the appeal, not a stay application.

03

Costs of the application

Holding

Each party to bear own costs given the unopposed nature of the application

Reasoning

Applying the principle that costs follow the event, the Court noted the matter was unopposed and ordered the Plaintiffs/Applicants to bear their own costs, with the final orders stating the parties to bear their own costs.

p. 14

Legal principles established

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  • An appeal for purposes of Order 42 Rule 6 is not established by the mere filing of a Notice of Appeal; a Memorandum of Appeal is required
  • Substantial loss must be substantiated with evidence; it is the cornerstone for granting a stay of execution
  • Provision of security under Order 42 Rule 6 is mandatory and its purpose is to guarantee due performance of the decree

Court orders

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  1. 1.The Notice of Motion application dated 30th November, 2021 by the Plaintiffs/Applicants is found to be unmeritorious and is dismissed
  2. 2.The parties to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 75
  • Civil Procedure Rules, 2010Order 9 Rule 9; Order 18; Order 19 Rule 1; Order 42 Rules 6(1), 6(2), 6(4); Order 51 Rule 1
  • Constitution of Kenya, 2010Articles 25(c), 47, 48, 50(1)
  • Appellate Jurisdiction Court ActRule 82
  • Court of Appeal RulesRules 75(1), 75(2)

Cases cited (24)

  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR

    Right of appeal is a constitutional right; appeal should not be rendered nugatory

  • Selestica Limited v GoldGold Development Ltd
    Civil Appeal 48 of 2015 [2015]

    Right of appeal guaranteed under Article 50(1); stay orders discretionary

  • Butt v Rent Restriction Tribunal
    [1979] KLR

    Principles for grant or refusal of stay of execution pending appeal

  • Henry Ambeva v Phanice Khanjala
    [2018] eKLR

    Cited for Butt v Rent Restriction Tribunal stay principles

  • Dari Limited & 5 others v East African Development Bank & 2 others
    [2020] eKLR

    Right to be heard as twin pillar of natural justice

  • Kal Mbaki & 2 Others v Gichuhi Macharia
    [2005] eKLR

    Rights of a party should not be prejudiced without opportunity to be heard

  • Matiba v Attorney General
    [1995 - 1998] 1 EA 192

    Stay refused without hearing counsel present in court

  • Kennedy Korir Sargo v KCB Bank Limited & another
    [2021] eKLR

    Natural justice - fair opportunity to answer the case against one

  • Msagha v Chief Justice & 7 Others
    Nairobi HCMCA No 1062 of 2004 [2006] 2 KLR 553

    Ingredients of natural justice; decision in violation is no decision

  • Baker v Canada (Minister of Citizenship & Immigration)
    2 SCR 817

    Values underlying duty of procedural fairness

  • Syokimau Residents Association & 5 others v Regina Mueni Kaloki & another
    eKLR

    Violation of natural justice renders decision void

  • General Medical Council v Spackman
    [1943] 2 All ER 337

    Decision in breach of natural justice must be declared no decision

  • Ridge v Baldwin
    [1963] 2 All ER 66

    Decision given without natural justice is void

  • Egal Mohamed Osman v Inspector General of Police & 3 Others
    [2015] eKLR

    Cardinal rule that no one should be condemned unheard

  • The Management Committee of Makondo Primary School and another v Uganda National Examination Board
    HC Civil Misc Application No 18 of 2010

    Audi alteram partem rule - hear the parties in turn

  • Absalom Dova v Tarbo Transporters
    [2013] eKLR

    Stay balances rights of appellant and decree holder

  • HGE v SM
    [2020] eKLR

    Cited for Absalom Dova balancing principle

  • OGM (Suing as the father of KGW v FG & Another
    [2020] eKLR

    Mere Notice of Appeal insufficient; Memorandum of Appeal needed to show sufficient cause

  • Mukuma v Abuoga
    [1988] KLR 645

    Definition of substantial loss - preserving status quo so appeal not rendered nugatory

  • Kenya Shell Limited v Kibiru
    [1986] KLR 410

    Substantial loss is the cornerstone for granting stay; must be evidenced

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

    Purpose of security under Order 42 - guarantee due performance of decree

  • Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 Others
    [2015] eKLR

    Provision of security is mandatory; security measured against entire decree

  • Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Cooperative Society Ltd
    Judicial Review application no 6 of 2014

    Costs follow the event; compensates successful party

  • Shivaji Simon v Advocates Disciplinary Tribunal; Nelly Mutua Wafula & 2 Others (Interested Parties)
    [2022] eKLR

    Articles 47 and 50 rights not violated where tribunal acted fairly

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 and Order 18 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Jeizan & another v Bayusuf & 3 others", Case Analysis (2023). Environment & Land Case 170 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21057/eng@2023-10-18

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