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ELCPartially AllowedAmended Notice of Motion dated 30/01/2024 (ELC suit re Plot C6-219 Kayole, Nairobi)· [2024] KEELC 3707 (KLR)

Odhiambo v Ogalo & 2 others (Environment and Land Case Civil Suit E043 of 2022) [2024] KEELC 3707 (KLR)

Environment and Land Court
8 May 2024
2,988 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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Kenya's Environment and Land Court refused to pause a land judgment because the applicants waited three months and gave no proof of real loss.

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 Nairobi (Mogeni J) on an amended notice of motion dated 30/01/2024 by the 1st and 2nd defendants seeking leave for new advocates to come on record and a stay of execution of the court's judgment and decree of 12 October 2023, which had ordered removal of permanent structures from Plot C6-219, Kayole, and awarded compensation, loss of use and exemplary damages to the plaintiff, the widow and administratrix of the registered proprietor Joseph O Jaoko. The applicant, alleging ownership as bona fide purchaser and an intended appeal, invoked Order 42 rule 6, contending substantial loss of rental income and property value. The respondent opposed, citing unexplained delay, want of security, and contempt of the judgment through continued rent collection. The court framed two issues: whether the stay threshold was met and costs. It found the application filed about three months after judgment with no explanation, holding that a notice of appeal and request for proceedings do not stop time. It found no substantiated substantial loss, no demonstration that the appeal would be rendered nugatory, and consequently no basis for security. The court declined to determine the contempt allegation absent a formal application, leaving the respondent free to file one. Prayer 1A (change of advocates) was granted, but the stay was refused and the motion dismissed with costs to the plaintiff/respondent.

Key legal issues

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01

Whether the stay application was brought without unreasonable delay

Holding

The application filed about three months after judgment was inordinately delayed and no explanation was given

Reasoning

The decree was made on 12/10/2023 and the application filed on 31/01/2024, roughly three months later. Although a notice of appeal was filed on 25/10/2023 and certified proceedings requested, an appeal does not operate as a stay and preparing the record does not hinder filing a stay application. Following Utalii Transport and Jaber Mohsen Ali, even a delay of days can be inordinate; the delay here was unexplained and therefore inexcusable.

p. 4
02

Whether the applicant demonstrated substantial loss

Holding

No; the claims of lost rental income and property value were unevidenced and ownership had already been adjudicated

Reasoning

The applicants alleged gross annual income of Ksh 2,240,880 and a market value of Ksh 20,000,000 but produced only three rent payment sheets for November 2023 to January 2024, which was inadequate proof. The allotment of the suit property by the 3rd defendant had been dealt with in the judgment and could not found substantial loss. Substantial loss is the cornerstone of stay jurisdiction and must be prevented with evidence, not assertion.

p. 4
03

Whether the appeal would be rendered nugatory if stay is denied

Holding

No; the onus lay on the applicants and was not discharged

Reasoning

The subject matter is land with tenants in occupation; neither the plaintiff nor the applicants are in actual occupation. The court cannot speculate on the appeal's prospects, as that would amount to sitting on appeal on itself. Citing the definition of 'nugatory' in Reliance Bank Ltd v Norlake Investments Ltd, the applicants failed to show the appeal would be of no legal consequence if execution proceeded.

p. 5
04

The respondent's allegation of contempt of the judgment of 12/10/2023

Holding

Not determined; no formal contempt application was filed

Reasoning

The plaintiff/respondent submitted extensively that the applicants were in contempt and deserved no audience, relying on several authorities. However, no formal application for contempt was before the court. The court declined to address the issue substantively but left the respondent at liberty to file a formal complaint, which would be heard after service and response.

p. 5
05

Who should bear the costs of the application

Holding

The plaintiff/respondent, as costs follow the event and the application was unmerited

Reasoning

Section 27 of the Civil Procedure Act confers discretion on the court to award costs, and costs follow the events, though the court is guided by the conduct of the parties towards the suit and the subject matter. Having found the application unmerited and the applicants' conduct contrary to the overriding objective, the plaintiff/respondent was held entitled to costs.

p. 5

Legal principles established

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  • The three conditions for granting a stay of execution under Order 42 rule 6(2) are substantial loss, application made without unreasonable delay, and furnishing of security; they are to be established by the applicant
  • An unexplained delay of approximately three months in filing a stay application is inordinate; a notice of appeal and request for certified proceedings do not excuse the delay
  • Substantial loss must be evidenced, not merely asserted; mere allegations of loss of rent and property value cannot found a stay where ownership has already been determined
  • Article 159(2)(d) of the Constitution is not a panacea for abuse of court process or disregard of procedural rules

Court orders

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  1. 1.Leave granted to the firm of Prof Albert Mumma & Company Advocates to come on record for the 1st and 2nd defendants/applicants in place of Kinuthia Kahindi & Co. Advocates (prayer 1A)
  2. 2.The amended notice of motion dated 30/01/2024 is otherwise dismissed with costs to the plaintiff/respondent
  3. 3.Stay of execution of the judgment and decree of 12th October 2023 refused

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6 (including rule 6(2)(a) and (b))
  • Civil Procedure RulesOrder 50 rule 4
  • Civil Procedure ActSection 27
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (18)

  • Charles Kariuki Njuri vs Francis Kimaru Rware (Suing as Administrator of Estate of Rwara Kimaru alias Benson Rwara Kimaru (Deceased)
    [2020] eKLR
  • Teachers Service Commission vs Kenya National Union of Teachers
    Petition No. 23 of 2013
  • R vs County Chief Officer Finance & Economic Planning, Nairobi City County, Ex-Parte Stanley Muturi
    [2018] eKLR
  • Mawani vs Mawani
    [1977] KLR 159
  • Caliph Limited vs Barbel Sharma & Another
    [2015] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    Application No 5 of 2014, [2014] eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Utalii Transport Company Limited & 3 Others v NIC Bank Limited & another
    Nairobi HCC No. 32 of 2010, [2014] eKLR
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    Eldoret ELC No. 200 of 2012, [2014] eKLR
  • William K Too v Simion K Langat
    Nakuru Civil Appeal No. 1/2007, [2007] eKLR
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    {2012}
  • Machira t/a Machira & Co Advocates v East African Standard
    Nairobi Civ No. 612 of 1996, [2002] eKLR
  • Machira t/a Machira & Co Advocates vs. East African Standard (No 2)
    [2002] KLR 63
  • Shah Munge & Partners Ltd v National Social Security Fund Board of Trustees & 3 others
    Nairobi Civil 211 of 2016, [2018] eKLR
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • David Morton Silverstein v Atsango Chesoni
    Nairobi CoA Appeal No. 189 of 2001, [2002] eKLR
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & another
    Nyeri Civil No. 17 of 2014
Jurisdiction invoked
Inherent jurisdiction and Order 42 rule 6 of the Civil Procedure Rules; section 27 of the Civil Procedure Act on costs

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, "Odhiambo v Ogalo & 2 others (Environment and Land Case Civil Suit E043 of 2022) [2024] KEELC 3707 (KLR)", Case Analysis (2024). Amended Notice of Motion dated 30/01/2024 (ELC suit re Plot C6-219 Kayole, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3707/eng@2024-05-08

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