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ELCAllowedMaua CMCC No 27 of 2017 (Appeal)· [2024] KEELC 1119 (KLR)

Kaberia & 3 others v Mutisya & 2 others (Environment and Land Appeal E001 of 2024) [2024] KEELC 1119 (KLR)

Environment and Land Court
28 February 2024
CNCK Nzili
3,418 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court halted execution of a land-and-water decree because carrying it out would cause irreversible harm before the appeal is heard.

What this practically means

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Executive summary

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By an application dated 8 January 2024, the applicants (appellants in an appeal against a judgment delivered on 6 December 2023 in Maua CMCC No 27 of 2017) sought a stay of execution of the decree pending appeal. They argued they had an arguable appeal, would suffer substantial loss - including the displacement of the elderly 3rd appellant from land she had occupied for 60 years - and that institutions (schools, a dispensary, a church) dependent on their water infrastructure would suffer hardship. They alleged the respondents vandalised their water infrastructure during the 30-day temporary stay. The respondents, led by the 1st respondent Zachary Mutisya, opposed, contending the applicants hired goons to fabricate grounds, that the decree benefited all parties, that a stay would deny over 5,000 residents of Maua access to a constitutional right to water, and that the applicants had no proprietary rights to the water project or suit land. The court applied the settled conditions for stay under Order 42 Rule 6(1): substantial loss, no unreasonable delay, security, and the interest of justice. It found substantial loss demonstrated given the decree's declaratory orders and the order correcting the adjudication area map, whose execution would cause irreversible loss beyond access to water. It noted missing crucial parties (water officers, the County Government of Meru, the National Land Commission), accepted the application was filed timeously, and noted the OB report implicating the 1st respondent in the vandalism, which the respondents failed to formally counter. The application was allowed: stay of execution granted pending appeal, Kshs 250,000/= security for costs to be deposited within seven days, and the appeal to be fast-tracked on a priority basis. The court also cautioned that written submissions do not amount to evidence.

Key legal issues

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01

Whether substantial loss was demonstrated

Holding

Yes - the declaratory orders and correction of the area map would cause irreversible loss if executed by land adjudication offices, and the impact of the decree goes beyond access to water

Reasoning

The decree contained declarations on ownership of the water project and parcels 3241 and 3343 and an order for correction of the adjudication map. Executing such a decree would alter the ground position irreversibly. The court found the appeal arguable, noted the absence of crucial parties (water officers, County Government of Meru, National Land Commission) at the trial, and held that execution would cause irreversible loss beyond mere access to water.

p. 6
02

Whether the application was filed without unreasonable delay and security offered

Holding

Yes - the application was filed timeously before the 30-day interim stay lapsed, and the applicants offered security

Reasoning

The court noted the application dated 8.1.2024 was filed within the window following the 6.12.2023 judgment and before the lapse of the interim stay. The applicants also expressed willingness to offer security or abide by conditions. The court accepted both limbs and required a cash deposit of Kshs 250,000/= as security for costs.

p. 6
03

Whether written submissions can be used to introduce facts not in the affidavits

Holding

No - written submissions do not amount to evidence

Reasoning

The court observed that both parties narrated facts by way of written submissions that were missing from their affidavits, particularly on the history of the two water projects. Relying on Daniel Toroitich Arap Moi v Mwangi Stephen Mureithi, the court cautioned against the growing practice of adducing facts through submissions instead of affidavits.

p. 6

Legal principles established

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  • Written submissions do not amount to evidence and parties should not adduce facts through submissions instead of affidavits
  • An applicant for stay must establish substantial loss, offer security, move the court without unreasonable delay, and satisfy the interest of justice
  • Allegations of substantial loss must be substantiated by tangible and cogent evidence

Court orders

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  1. 1.Stay of execution of the decree in Maua CMCC No 27 of 2017 granted pending the hearing and determination of the appeal
  2. 2.Applicants to deposit Kshs 250,000/= security for costs within seven days from the date of the order
  3. 3.Appeal to be fast-tracked and heard on a priority basis

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Water ActSections 82, 85, 92(2)(b), 119, 121 (2002, now repealed)
  • Constitution of KenyaArticles 27(1), 159, 165(3)(5)
  • Warma Rules

Cases cited (9)

  • Antoine Ndiaye v African Virtual University
    [2015] eKLR
  • Nicholas Stephen Okaka & another v Alfred Waga Wesonga
    [2022] eKLR
  • Public Service Commission and others v Okiya Omtata & others
    [2021] eKLR
  • Stephen Wanjohi vs Central Glass Industries Ltd
    NRB HCCC No 6726 of 1991
  • Charles Wahome Gethi v Angela Wairimu Gethi
    (2008) eKLR
  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
  • RWW v EKW
    [2019] eKLR
  • Augustin Michael Mulandi & 2 others v Nol Turesh Water and Sanitation Co. Ltd
    [2020] eKLR
  • Daniel Toroitich Arap Moi v Mwangi Stephen Mureithi & another
    [2014] eKLR
On appeal from
Chief Magistrate's Court, Maua
CMCC No 27 of 2017
Jurisdiction invoked
Order 42 Rule 6(1) Civil Procedure Rules; appellate jurisdiction from the magistrates' court

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, "Kaberia & 3 others v Mutisya & 2 others (Environment and Land Appeal E001 of 2024) [2024] KEELC 1119 (KLR)", Case Analysis (2024). Maua CMCC No 27 of 2017 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1119/eng@2024-02-28

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