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ELCDismissedNot stated on the face of the judgment (amended Notice of Motion dated 26th January 2024)· [2024] KEELC 956 (KLR)

Nyamboki v Nairobi City County & 251 others (Environment and Land Case 672 of 2015) [2024] KEELC 956 (KLR)

Environment and Land Court
22 February 2024
OMOGUTTU MBOYA
3,370 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 an eviction and KES 10 million judgment because the applicants waited six months to file and showed no real loss.

What this practically means

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Executive summary

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This first-instance ruling of the Environment and Land Court at Nairobi, delivered by OGUTTU MBOYA, J on 22nd February 2024, determined an amended Notice of Motion dated 26th January 2024 in which the 177th Defendant and 26 others sought a stay of execution of the decree issued on 23rd January 2024, arising from a judgment delivered on 17th July 2023, pending the hearing of their appeal, Civil Appeal No. E001 of 2024, before the Court of Appeal. The judgment had also awarded general damages of KES 10,000,000 and an eviction order. The Plaintifi/Respondent opposed the application, contending that it was mounted after an inordinate, unexplained delay of over six months, and that the Applicants had failed to demonstrate substantial loss, which counsel submitted was the cornerstone of a stay application. The Respondent further noted that the Applicants admitted they did not reside on the suit property, and that the Respondent was able to refund the decretal sum if the appeal succeeded. The court framed two issues: whether the application was filed with unreasonable and inordinate delay, and whether the Applicants demonstrated substantial loss. On the first issue, the court found the six-month delay inordinate and unexplained, applying Njoroge v Kimani. On the second, it found no evidence of substantial loss, noting the Applicants' admission that they never resided on the suit property and their failure to controvert the Respondent's sworn assertion of ability to refund the decretal sum. The application was dismissed with costs to the Plaintifi/Respondent only.

Key legal issues

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01

Whether the stay application was filed timeously

Holding

The application was filed after an inordinate and unexplained delay of over six months from the delivery of judgment

Reasoning

Judgment was delivered on 17th July 2023 but the application was not filed until 15th January 2024 (amended 26th January 2024), a period exceeding six months. The Applicants offered no explanation for the delay even though their Notice of Appeal was filed timeously. Without any explanation, the court could not exercise its equitable discretion in their favour.

p. 4
02

Whether the Applicants demonstrated substantial loss

Holding

The Applicants failed to demonstrate substantial loss; they admitted they do not reside on the suit property and did not controvert the Respondent's ability to refund the decretal sum

Reasoning

The Applicants merely recited statutory language without furnishing evidence of the loss they would suffer. Their own sworn statement that they never resided on the suit property undermined any claim of prejudice from the eviction order. Further, their failure to file a Further/Supplementary affidavit to challenge the Respondent's averment that it could refund the decretal sum meant that averment was admitted.

p. 7

Legal principles established

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  • Substantial loss is the cornerstone of an application for stay of execution pending appeal; without evidence of substantial loss there is no foundation for a stay
  • An applicant for stay must approach the court timeously and must account for any delay; unexplained delay defeats the court's equitable discretion
  • Averments in a Replying affidavit that are not challenged under oath are deemed admitted

Court orders

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  1. 1.The Amended Notice of Motion Application dated the 26th January 2024 is dismissed
  2. 2.Costs of the Application awarded to the Plaintifi/Respondent only

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Civil Procedure Rules (former)Order XLI rule 4 (as quoted in Kenya Shell Ltd vs Benjamin Karuga Kibiru & Another)

Cases cited (8)

  • Njoroge v Kimani
    (Civil Application Nai E049 of 2022) [2022] KECA 1188 (KLR) (28 October 2022) (Ruling)
  • Kenya Shell Ltd vs Benjamin Karuga Kibiru & Another
    (1986) eKLR
  • Jesikey Enterprises Ltd vs George Kahoto Muiruri
    (2022) eKLR
  • Adah Nyabok vs Uganda Holdings Properties Ltd
    (2021) eKLR
  • Machira T/a Machira & Co Advocates vs East African Standards
    (2002) eKLR
  • Abok James Odera T/a A.J Odera & Associates vs John Patrick Machira T/a Machira & Co Advocates
    (2001) eKLR
  • Rose Mbithe Ndetei vs Mathew Kialo Mbogo
    (2008) eKLR
  • Mohammed & Another vs. Haidara
    [1972] E.A 166
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

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, "Nyamboki v Nairobi City County & 251 others (Environment and Land Case 672 of 2015) [2024] KEELC 956 (KLR)", Case Analysis (2024). Not stated on the face of the judgment (amended Notice of Motion dated 26th January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/956/eng@2024-02-22

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