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ELCDismissedNotice of Motion dated 25.03.2022 (pending appeal; appeal against ruling delivered 29.04.2021 in LDT ELC Case No. 18 of 2011, Siakago)· [2024] KEELC 1437 (KLR)

Njiru & 2 others v Mbiti (Environment and Land Appeal E006 of 2021) [2024] KEELC 1437 (KLR)

Environment and Land Court
24 January 2024
AKA.K. Kaniaru
1,926 words in judgment
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The bottom line

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A Kenyan court threw out a family's bid to pause land subdivision because they failed to give the judge the ruling they were appealing against.

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 Embu (A.K. Kaniaru, J) on a Notice of Motion dated 25.03.2022 in which the applicants, the 1st, 2nd and 3rd Appellants in a pending appeal, sought a stay of execution of the decree dated 21.07.2011 in LDT ELC Case No. 18 of 2011 at Siakago, and a stay of the further implementation of subdivisions of Mbeti/Gachuriri/1261 and Mbeti/Gachuriri/1269, pending the hearing and final determination of their appeal against a ruling delivered on 29.04.2021. The applicants, sons of the respondent by his deceased first wife, argued that the appeal was arguable and would be rendered nugatory by subdivision and eviction, and offered to furnish security. The respondent opposed, contending that no substantive appeal had been lodged, no substantial loss was demonstrated, and the application was designed to frustrate execution. The court framed one issue: whether the application had merit. Applying Order 42 Rule 6 and the guidance in Butt v Rent Restriction Tribunal, the court held that the applicants had invoked the wrong provisions (Order 40 Rule 6 on injunctions and Section 68(1) of the Land Registration Act on inhibition), which was not in itself fatal, but that their failure to avail the ruling and order of 29.04.2021 forming the basis of the appeal was fatal, as the court could not assess whether the appeal was arguable. The application was dismissed with no order as to costs, the dispute being between a father and his sons.

Key legal issues

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Whether the application for stay of execution pending appeal met the threshold in Order 42 Rule 6 of the Civil Procedure Rules

Holding

The application was dismissed. Though brought under wrong provisions (Order 40 Rule 6 and Section 68(1) of the Land Registration Act), that alone was not fatal; the fatal flaw was the applicants' failure to avail the ruling and order of 29.04.2021 being appealed, leaving the court unable to determine whether the appeal was arguable.

Reasoning

The court noted the power to grant stay is discretionary and guided by Butt v Rent Restriction Tribunal: substantial loss, no undue delay, and security are required. The applicants invoked Order 40 Rule 6 (injunctions) and Section 68(1) of the Land Registration Act (inhibition), neither of which was relevant, though mis-citation does not render an application incurably defective. More fundamentally, they provided only the 2011 decree, not the 2021 ruling and order under appeal, so the court could not establish whether the intended appeal was frivolous or arguable. The application appeared hurried and poorly prepared.

p. 4

Legal principles established

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  • Stay of execution pending appeal requires demonstration of substantial loss, absence of unreasonable delay, and security for due performance of the decree under Order 42 Rule 6
  • An applicant for stay must avail the ruling and order forming the basis of the appeal so the court can assess whether the appeal is arguable; failure to do so is fatal

Court orders

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  1. 1.The application dated 25.03.2022 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rule 6; Order 42 Rule 6(1), (2), (3)
  • Civil Procedure ActSection 3A
  • Land Registration ActSection 68(1)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (7)

  • Jamii Bora Bank Ltd & Anor v Samuel Wambugu Ndirangu
    Civil Appeal No. E030 of 2021 (Nyeri), eKLR
  • RWW v EKW
    [2019] eKLR
  • Shell Ltd v Kibiru & Anor
    [1986] KLR 410
  • Mwaura Karuga T/A Limit Enterprises v Kenya Bus Services Ltd & 4 Others
    [2015] eKLR
  • Arun C Sharma v Ashana Raikundalia T/A Raikundalia & Co. Advocates & 2 Others
    [2014] eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Francis K. Chabari & another v Mwarania Gaichura Kairubi
    [2022] eKLR
On appeal from
Siakago (LDT ELC Case No. 18 of 2011)
LDT ELC Case No. 18 of 2011
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010; Section 3A of the Civil Procedure Act; Article 159(2)(d) of the Constitution (invoked by applicants)

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, "Njiru & 2 others v Mbiti (Environment and Land Appeal E006 of 2021) [2024] KEELC 1437 (KLR)", Case Analysis (2024). Notice of Motion dated 25.03.2022 (pending appeal; appeal against ruling delivered 29.04.2021 in LDT ELC Case No. 18 of 2011, Siakago). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1437/eng@2024-01-24

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