Nchebere & another v M’Ibaya & 4 others (Environment and Land Appeal E002 of 2023) [2024] KEELC 3683 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applications were filed without unreasonable delay
Judgment was delivered on 30th June 2023 and the applications were filed on 14th and 19th July 2023, hence no delay.
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.
Whether the applicants demonstrated substantial loss
Eviction and demolition of their developments would cause substantial loss and render the appeals nugatory.
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.
Whether security should be imposed as a condition for stay
The court exercised its discretion not to impose security, directing the applicants instead to fast-track the appeals.
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.
Legal principles established
#- 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
#- 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.Security is not imposed on the applicants; instead they are directed to fast-track the hearing of the appeals
- 3.Parties to bear their own costs
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.