Kirikoini Investments Limited & another v Ngene (Environment and Land Appeal E021 of 2024) [2024] KEELC 3792 (KLR)
The bottom line
#Kenya's Environment and Land Court threw out a stay of execution because the applicants filed the wrong affidavit and proved no real loss.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the instant Application [which seeks stay of execution pending appeal] is competent or otherwise.
- 2.Whether the Applicants herein have established and/or demonstrated the likelihood of substantial loss arising and/or occurring, if the orders sought are not granted.
- 3.What reliefs, if any, ought to be granted.
Key legal issues
#Competency of the notice of motion
The application was fatally incompetent because it referenced a supporting affidavit of P M G Junior that was never filed, and the affidavits actually filed (by Joseph Kibiru) had no nexus to the application. Further, no authority or company resolution was shown for the deponent to act for the 1st Appellant company.
Order 42 Rule 6(2) applications must be supported by a competent affidavit referenced at the foot of the application. The referenced affidavit was non-existent; the Kibiru affidavits were unreferenced and unsupported by authority under Order 9 Rule 2 and the Supreme Court's decision in Fanikiwa Limited on corporate authority.
Substantial loss for stay of execution
The Applicants failed to demonstrate any substantial loss. Neither the application nor the affidavits highlighted substantial loss, and their claim of occupation and development was inconsistent with an existing injunction restraining them from the suit property.
Substantial loss is the cornerstone of stay applications. Possession contrary to the temporary injunction issued in ELC Civil Appeal No. 2 of 2018 would amount to contempt of court and cannot ground the court's discretion. No evidence of the alleged development was tendered, and the burden of proof under Sections 107-109 of the Evidence Act was not discharged.
Discretion to grant stay and fruits of judgment
A decree holder is entitled to the fruits of judgment absent exceptional circumstances; the Applicants placed no such circumstances before the court.
Stay of execution is discretionary and requires balancing the competing interests of decree holder and judgment debtor, taking into account the parties' conduct, equity and the interests of justice. On the totality of the evidence, the balance did not favour the Applicants, and the court should not aid a party acting in breach of lawful court orders.
Legal principles established
#- An application must be supported by the affidavit it references; a supporting affidavit not adverted to or referenced in the application has no nexus to it
- A limited liability company can only act through a duly appointed and authorized officer under the corporate seal
- Substantial loss is the cornerstone for granting stay of execution; mere assertions are insufficient absent evidence
Court orders
#- 1.The Application dated 22nd February 2024 is dismissed with costs to the Respondent
- 2.The interim orders and/or undertaking issued on 14th March 2024 are discharged (vacated)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Milimani
- MCELC No. 4955 of 2015
- Jurisdiction invoked
- Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 (appellate jurisdiction over the Chief Magistrate's Court)
Relief refused
#Stay of execution of the Judgment issued on 16th February 2024 in Civil Suit No. 4955 of 2015 pending the hearing and determination of the Application and the Appeal
Application fatally incompetent for want of a supporting affidavit; no substantial loss demonstrated; applicants' occupation was in contempt of an injunction
Costs
Costs of the application to the Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the Application beforehand [dated the 22ND of February 2024], be and is hereby dismissed with costs to the Respondent.
the interim orders and/or undertaking which was issued on the 14th March 2024; be and is hereby discharged [ vacated].
in the absence of the requisite and apposite supporting afidavit, duly adverted to and referenced in the application; the entire application beforehand is rendered misconceived, invalid and fatally incompetent.
Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay
if the Applicants herein seek to partake of an order of stay merely to protect [sic] the development which was erected on the suit property contrary to lawful court orders, then this court must be reluctant to aid such a party in sustaining what is clearly, an act in breach and violation of the Law/ Lawful Orders of the Court.
Issues in the judgment
#The application cites a supporting affidavit of P M G Junior which was never filed or annexed; the court found the affidavits actually filed had no nexus to the application
The judgment contains numerous typographical errors throughout (e.g. 'afidavit' for 'affidavit', 'sufier' for 'suffer', 'Quiet clearly' for 'Quite clearly')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirikoini Investments Limited & another v Ngene (Environment and Land Appeal E021 of 2024) [2024] KEELC 3792 (KLR)", Case Analysis (2024). ELC Civil Appeal (Nairobi) - Notice of Motion dated 22nd February 2024, arising from MCELC No. 4955 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3792/eng@2024-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.