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ELCAllowedELC Appeal No. E002 of 2023 (consolidated with ELC Appeal No. E004 of 2023)· [2024] KEELC 3683 (KLR)

Nchebere & another v M’Ibaya & 4 others (Environment and Land Appeal E002 of 2023) [2024] KEELC 3683 (KLR)

Environment and Land Court
15 February 2024
2,314 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court in Meru halted evictions pending appeal, finding no delay, substantial loss, and waiving the usual security requirement.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (C. Yano, ELC Judge) determines two consolidated Notices of Motion dated 14th July 2023 and 19th July 2023 in ELC Appeals E002 and E004 of 2023, consolidated with E002 as lead file. Both sought stay of execution of the judgment and decree in Tigania ELC Case No. 55 of 2011 delivered on 30th June 2023, which decreed eviction of the applicants within 30 days in favour of the respondents. The applicants asserted long occupation and intensive development of the suit parcels, contending that eviction would cause irreparable loss and render their appeals nugatory. Francis Murungi M'ibaya, the 1st respondent, opposed, arguing prematurity (the 30-day stay granted by the trial court still subsisting), disobedience of prior court orders in constructing developments, failure to offer security, and that the appeals were unmeritorious and cross-appeals by the parties against each other were designed to frustrate the decree. Framing the sole issue as whether the applicants met the criteria for stay pending appeal, the court applied Order 42 Rule 6 and the principles in Butt v Rent Restriction Tribunal, RWW v EKW, Victory Construction and Silverstein v Chesoni. It found no unreasonable delay, accepted that eviction and demolition would cause substantial loss and render the appeals nugatory, and exercised its discretion to dispense with security while directing the applicants to fast-track the appeals. The applications were allowed as prayed, with each party bearing their own costs, and the Deputy Registrar was directed to call for the original trial court record.

Key legal issues

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01

Whether the applications were filed without unreasonable delay

Holding

Judgment was delivered on 30th June 2023 and the applications were filed on 14th and 19th July 2023, hence no delay.

Reasoning

The court applied the first limb of Order 42 Rule 6(2), comparing the date of the impugned judgment with the filing dates of the two applications and concluding that the interval of roughly two weeks and three weeks respectively constituted no unreasonable delay.

p. 5
02

Whether the applicants demonstrated substantial loss

Holding

Eviction and demolition of their developments would cause substantial loss and render the appeals nugatory.

Reasoning

Relying on Silverstein v Chesoni, the court framed substantial loss as loss to be prevented by preserving the status quo. The applicants deponed to eviction and demolition of homes and developments on the suit lands; the court accepted that such execution would cause substantial loss and render the appeals nugatory.

p. 5
03

Whether security should be imposed as a condition for stay

Holding

The court exercised its discretion not to impose security, directing the applicants instead to fast-track the appeals.

Reasoning

Although security for due performance is a statutory condition under Order 42 Rule 6(2)(b), the court held that its imposition is discretionary. In the circumstances of the case, the interests of justice favoured releasing the applicants from furnishing security, coupled with a direction to expedite the hearing of the appeals.

p. 5

Legal principles established

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  • An applicant for stay pending appeal must demonstrate substantial loss, that the application was made without unreasonable delay, and readiness to furnish security for due performance of the decree.
  • Imposition of security is discretionary and may be waived where the interests of justice so require.

Court orders

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  1. 1.The applications dated 14th July 2023 and 19th July 2023 are allowed as prayed - stay of execution of the judgment/decree in Tigania ELC Case No. 55 of 2011 delivered on 30th June 2023 pending the hearing and determination of the appeals
  2. 2.Security is not imposed on the applicants; instead they are directed to fast-track the hearing of the appeals
  3. 3.Parties to bear their own costs
  4. 4.The Deputy Registrar to call for the Original Trial Record from the Lower Court to pave way for directions on the disposal of the appeals

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder XLI Rule 4(2) (as cited in Butt v Rent Restriction Tribunal)
  • Civil Procedure ActSections 1A and 1B

Cases cited (4)

  • Butt Versus Rent Restriction Tribunal
    (1982) eKLR 417
  • RWW Versus EKW
    [2019] eKLR
  • Victory Construction Versus BM (a minor suing through next friend one PMM)
    (2019) eKLR
  • Silverstein Versus Chesoni
    (2002) 1 KLR 867
On appeal from
Tigania (ELC) Magistrates' Court
Tigania ELC Case No. 55 of 2011
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (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, "Nchebere & another v M’Ibaya & 4 others (Environment and Land Appeal E002 of 2023) [2024] KEELC 3683 (KLR)", Case Analysis (2024). ELC Appeal No. E002 of 2023 (consolidated with ELC Appeal No. E004 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3683/eng@2024-02-15

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