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ELCAllowedNot stated in the judgment· [2024] KEELC 1687 (KLR)

Gathua v Nyarogo & 2 others (Environment and Land Appeal E020 of 2023) [2024] KEELC 1687 (KLR)

Environment and Land Court
20 March 2024
EME. K. Makori
996 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 in Malindi halted an eviction until the land appeal is heard, because evicting the owner now would make any appeal pointless.

What this practically means

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Executive summary

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The appellant, dissatisfied with the Lower Court's judgment of 5th April 2023 ordering his eviction from suit property Lamu/Kenyatta I/1536 and declaring the 1st respondent the rightful registered owner by transmission, moved the Court by Notice of Motion dated 5th September 2023 seeking stay of execution pending appeal. He contended he had purchased the property from relatives of the initial owner, Oginga Ododi. The 1st respondent opposed, arguing the appellant had refused to participate in the trial, his case was closed, and the counter-claim succeeded; that he had allowed the 90-day vacation period to lapse; and that no condition for stay, including security, was met, proposing instead (without prejudice) a deposit of Kshs. 1,000,000/-. The court identified the single issue as whether to grant stay pending appeal. Applying Order 42 Rule 6 as articulated in Antoine Ndiaye v African Virtual University, it found the application timeous, having been filed on 2nd May 2023 after the ruling. On substantial loss, invoking RWW v EKW, the court held that land ownership and possession were the substratum of the appeal and had to be preserved. Balancing the parties' interests, the court held the stay should issue on terms: the land to remain registered in the beneficial interest of the 1st respondent and the eviction halted pending appeal, with costs in the intended appeal. The court declined to delve into allegations that the appellant refused to participate in the trial, leaving that for the main appeal, and noted his right to a second chance to be heard.

Key legal issues

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01

Whether the conditions for stay of execution pending appeal under Order 42 Rule 6 were satisfied

Holding

Yes - the application was filed timeously, substantial loss arose because land ownership and possession are the substratum of the appeal, and the court fashioned security by preserving the 1st respondent's beneficial interest; stay was granted.

Reasoning

The court applied the three-pronged test in Order 42 Rule 6. The application was lodged on 2nd May 2023 following the 5th April 2023 ruling, satisfying the delay test. Because the suit concerns land, ownership and possession form the substratum, and eviction would destroy it. Balancing the parties' interests, the court granted a conditional stay preserving the 1st respondent's beneficial ownership.

p. 3

Legal principles established

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  • Stay of execution pending appeal is discretionary but must be exercised judicially upon the three prerequisites in Order 42 Rule 6: no undue delay, substantial loss, and security.
  • Stay preserves the subject matter of a land dispute so a successful appeal is not rendered nugatory, while weighing the respondent's right to the fruits of judgment.

Court orders

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  1. 1.That the suit property remain registered in the beneficial interest of the 1st respondent pending appeal
  2. 2.That the eviction of the appellant be halted during the pendency of the appeal to preserve the substratum of the suit
  3. 3.Costs in the intended appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (3)

  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • Antoine Ndiaye v African Virtual University
    [2015] eKLR
  • RWW v EKW
    [2019] eKLR
On appeal from
Lower Court (trial Court)
Jurisdiction invoked
Appellate/stay jurisdiction under Order 42 Rule 6 of the Civil Procedure Rules (appeal from the Lower Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gathua v Nyarogo & 2 others (Environment and Land Appeal E020 of 2023) [2024] KEELC 1687 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1687/eng@2024-03-20

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