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ELCDismissedNakuru ELC Appeal No. 34 of 2023 (Notice of Motion seeking stay of execution)· [2024] KEELC 3454 (KLR)

Kiriko Farmers- Mau Summit Ltd v Ngenia Farmers Co. Ltd & another (Environment and Land Appeal 34 of 2023) [2024] KEELC 3454 (KLR)

Environment and Land Court
11 April 2024
1,058 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court refused to pause execution of a decades-old land decree, ruling the applicant filed too late and showed no real loss.

What this practically means

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Executive summary

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Kiriko Farmers – Mau Summit Ltd, the appellant in Nakuru ELC Appeal No. 34 of 2023, moved the Environment and Land Court at Nakuru by notice of motion seeking a stay of execution of the decree and eviction order issued in Nakuru Civil Suit No. 705 of 1987, together with consequential orders, or alternatively an order maintaining the status quo over LR 2684 (subdivided into LR 2684/2 and LR 2684/3) pending the hearing of the appeal, with costs in the cause. The appellant deponed, through Newton Kabatha Kimani, that its members had settled on subdivided plots for over forty years and that the 1st respondent had trespassed and caused damage in February 2023; the appellant, though not originally a party to the suit, was affected by its judgment and its application to be enjoined, dated 8th March 2023, had been dismissed. James Mariate Muiru, chairman of the 1st respondent, replied that the land had been purchased jointly by members of both companies but the appellant's subdivision was nullified, and that litigation dating from a 1993 judgment must come to an end, offering to have security imposed if stay were granted. The court, applying Order 42 rule 6(1) and (2) of the Civil Procedure Rules 2010, found inordinate delay, no demonstrated substantial loss since the members had already settled on the land, and no security offered. The application was dismissed with costs on 11th April 2024.

Key legal issues

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01

Delay in bringing the stay application

Holding

The delay from the ruling of 31st October 2023 to the application of 24th January 2024, given the age of the dispute dating to the mid-1980s, was inordinate and disentitled the applicant to stay.

Reasoning

The court weighed the age of the dispute, which began in the mid-1980s, with the judgment of 21st May 1993 and decree extracted on 5th July 1993. Numerous applications had been filed and determined since. Against that background, filing for stay on 24th January 2024 after the 31st October 2023 ruling constituted inordinate delay, a condition precedent under Order 42 rule 6(2)(a) that the applicant failed to satisfy.

p. 2
02

Substantial loss

Holding

The applicant failed to demonstrate substantial loss because her members had already settled on the land and had participated in the suit.

Reasoning

Order 42 rule 6(2)(a) requires demonstration that substantial loss may result unless stay is granted. The court found that the applicant's members are already in occupation of the land, having settled there, so execution would not dispossess them of anything they lack. Their prior participation in the suit indicated an attempt to relitigate the same matter rather than genuine impending loss.

p. 2

Legal principles established

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  • An applicant for stay of execution under Order 42 rule 6 must satisfy the court that substantial loss may result unless the order is made, that the application was made without unreasonable delay, and must furnish security for due performance of the decree.
  • Litigation must come to an end; a party whose members already participated in a suit and settled on the land cannot use a stay application for a second attempt at relitigating.

Court orders

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  1. 1.The application for stay of execution pending appeal is dismissed with costs
Jurisdiction invoked
Order 42 rule 6(1) and (2) of the Civil Procedure Rules 2010

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, "Kiriko Farmers- Mau Summit Ltd v Ngenia Farmers Co. Ltd & another (Environment and Land Appeal 34 of 2023) [2024] KEELC 3454 (KLR)", Case Analysis (2024). Nakuru ELC Appeal No. 34 of 2023 (Notice of Motion seeking stay of execution). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3454/eng@2024-04-11

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