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ELCDismissedEnvironment and Land Appeal 19 of 2023· [2023] KEELC 21110 (KLR)

Ngao v Mbarak

Environment and Land Court at Malindi
25 October 2023
EME.K. Makori
1,686 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to pause a demolition order, ruling that building on land after being restrained is not irreparable loss.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi (E.K. Makori, J) on the appellant's application for a stay of execution pending appeal. The appeal challenges the ruling of the Senior Principal Magistrates Court at Kilifi (Hon. Kituku SPM) delivered on 3 May 2023 in SPMCC ELC No. E145 of 2021, which, on review, issued a mandatory injunction directing the appellant to demolish and remove structures on suit parcel CR 2778 / LR 5054/1227 (Kilifi/Block 3/925), a double-allocated and double-registered property, within 30 days. The dispute concerns dual allocation of the land, with the respondent first in time in registration. The appellant argued the appeal would be rendered nugatory and he would suffer irreparable loss given the property's value of KShs 19-26 million; the respondent countered that the structures were illegal, erected after injunctive orders, and that the appellant came with unclean hands. The court, applying the settled stay principles (preservation of the subject matter, avoiding a nugatory appeal, weighing the successful litigant's rights) and the law on interlocutory mandatory injunctions, declined to disturb the magistrate's discretion. It held the applicant was not being evicted but sanctioned for erecting structures after being restrained, and would suffer no irreparable loss. The application dated 8 May 2023 was dismissed with costs.

Key legal issues

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01

Whether stay of execution pending appeal should issue

Holding

Stay declined; the applicant erected the structures after being restrained and would not suffer irreparable loss

Reasoning

The court found the trial magistrate properly exercised discretion in issuing the mandatory injunction, since the structures were placed on the suit property after injunctive orders preserving the status quo. The suit property remains intact for trial, so the applicant would not suffer irreparable loss and the appeal would not be rendered nugatory if the demolition proceeds.

p. 4
02

Whether the trial court properly granted a mandatory injunction at the interlocutory stage on review

Holding

The trial court properly exercised its discretion; the ELC would not overturn it

Reasoning

Relying on Kenya Breweries v Okeyo and Shariff Abdi Hassan v Nadhif Jama Adan, the court held mandatory injunctions may issue interlocutorily in clear cases or special circumstances. The applicant breached existing restraining orders by erecting structures, justifying the trial court's review on 'any other sufficient reason'.

p. 4

Legal principles established

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  • A mandatory injunction can be granted at the interlocutory stage where the case is clear and special circumstances exist
  • The purpose of stay pending appeal is to preserve the subject matter so the appeal is not rendered nugatory, weighed against the successful litigant's rights

Court orders

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  1. 1.The application dated May 8, 2023 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (11)

  • Stephen Gathia Kimenyi v Nancy Wanjira Wawinyi T/A Providence Auctioneers
    [2016] eKLR

    Review on 'any other sufficient reason' must be analogous to grounds in Order 45 Rule 1

  • RWW v EKW
    [2019] eKLR

    Purpose of stay pending appeal and balancing appellant's rights against successful litigant's rights

  • Vishram Ravji Halai v Thornton & Turpin
    [1990] eKLR

    Principles for grant of stay orders

  • Ena Investment Limited v Bernard Onchau Mose & 2 others
    [2022] eKLR

    Costs follow the event

  • Nicholas Stephen Okaka & another v Alfred Waga Wesonga
    [2022] eKLR

    Costs follow the event

  • Daniel Mburunga Kiriamburi v Murungi M'ananga
    [2022] eKLR

    Conditions and principles for stay pending appeal

  • Jeny Luesby v Standard Group Ltd
    [2014] eKLR

    Commencement of execution is lawful and not equated to substantial loss

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417

    Power to grant stay of execution is discretionary

  • National Industrial Credit Bank Ltd v Aquinas, Francis Wasike & another
    [2006] eKLR

    Duty on applicant to prove appeal would be rendered nugatory

  • Kenya Breweries Limited & another v Washington O. Okeyo
    [2002] eKLR

    Mandatory injunction may issue interlocutorily in clear cases or special circumstances

  • Shariff Abdi Hassan v Nadhif Jama Adan
    [2006] eKLR

    Courts may grant mandatory injunction interlocutorily where the party is prima facie on the wrong

On appeal from
Senior Principal Magistrates Court at Kilifi
SPMCC ELC No. E145 of 2021
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from magistrates' courts in land matters

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, "Ngao v Mbarak", Case Analysis (2023). Environment and Land Appeal 19 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21110/eng@2023-10-25

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