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ELCPartially AllowedEnvironment & Land Case 237 of 2021· [2024] KEELC 3796 (KLR)

Rabe v Gude (Environment & Land Case 237 of 2021) [2024] KEELC 3796 (KLR)

Environment and Land Court
14 March 2024
2,342 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court paused enforcement of a land judgment so the Diani property cannot be sold or transferred while the losing party appeals.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kwale, delivered by A.E Dena J on 14 March 2024, determines the defendant Hamadi Salim Gude's Notice of Motion dated 17 August 2023 seeking stay of execution of the judgment of 8 August 2023, in which his counterclaim was dismissed and the plaintiff Marina Gisela Rabe was directed to be registered as sole owner of Kwale/Diani SS/3190, arising from property Kwale/Diani SS/3032. The plaintiff opposed through grounds of opposition and a replying affidavit, arguing the applicant had not shown substantial loss, was not in occupation, had offered no security, and that the incoming firm of advocates was not properly on record. The court first addressed the representation issue, holding that under Order 9 Rule 9 a change of advocate after judgment requires leave or consent, but declined to dismiss the application, refusing to visit counsel's mistakes on the client and prioritising substantive justice. On the merits, the court applied Order 42 Rule 6(2): it found the application filed about a week after judgment was timeous; it found the plaintiff, already in possession and control, would suffer no prejudice from a stay, whereas the applicant risked substantial loss; and it held that the jointly held title sufficed as security. The court granted a limited stay: status quo to be maintained with the plaintiff remaining in physical possession, no disposal, sale, charge or subdivision by either party, and an inhibition order placed on the title. Injunction prayers were not considered, and costs were left to abide the outcome of the intended appeal.

Key legal issues

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01

Whether the new firm of advocates is properly on record

Holding

The court excused the irregularity in the interest of substantive justice, refusing to penalise the client for counsel's mistakes

Reasoning

The plaintiff contended the incoming firm was not on record as required by Order 9 Rule 9. The court noted the applicant had instructed the new firm after judgment to file an appeal. Balancing procedure and substance, the court held it would not dismiss the application over the defect, focusing instead on substantive justice.

p. 3
02

Whether substantial loss was demonstrated and interests balanced

Holding

The court found no prejudice to the plaintiff who was already in possession, and exercised its discretion in favour of a limited stay maintaining the status quo

Reasoning

The plaintiff was in possession and control of the property, an advantage over the defendant. The court weighed this against the applicant's claim of substantial loss from losing co-owned property with a matrimonial home. Since the plaintiff's position would not worsen under a stay, the balance tipped towards granting stay limited to maintaining the status quo.

p. 4
03

Whether the application was brought without undue delay

Holding

The application filed on 17/8/2023, about a week after judgment on 8/8/2023, was timeous

Reasoning

Order 42 requires the application be made without unreasonable delay. The court noted judgment was delivered on 8/8/2023 and the motion filed on 17/8/2023, slightly over a week later, and found no undue delay.

p. 4
04

Whether security was required given there were no orders for costs

Holding

The court held that the co-registered title in both parties' names suffices as security for any emerging costs

Reasoning

The plaintiff argued the applicant had offered no security. The applicant relied on the absence of a costs order. The court interpreted Order 42 Rule 6(2)(b) as allowing the court to order security in a form it deems fit, and found the jointly held title adequate.

Legal principles established

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  • The purpose of a stay of execution pending appeal is to preserve the subject matter in dispute so that a successful appeal is not rendered nugatory
  • Where there is a change of advocate after judgment, the change must be by leave of court or by consent under Order 9 Rules 9 and 10, but the court may decline to dismiss an application on that basis in the interest of substantive justice
  • Security under Order 42 Rule 6(2)(b) guarantees due performance of the decree and the court has discretion as to the form of security

Court orders

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  1. 1.That the status quo on the suit property Kwale/Diani SS/3032 shall be maintained and for the avoidance of doubt the Plaintiff shall remain in physical and actual possession
  2. 2.That there shall be no disposal, sale, charge, subdivision of the suit property Kwale/Diani SS/3032 by either of the parties, with an inhibition order placed against the title in tandem with this direction
  3. 3.Prayers for injunction not considered in light of the stay orders
  4. 4.Costs shall abide the outcome of the Appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 8(2)
  • Civil Procedure RulesOrder 9 Rule 9(a) and 9(b)
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (5)

  • S K Tarwadi v Veronica Muehlemann
    [2019] eKLR
  • RWW v EKW
    [2019] eKLR
  • Mukuma v Abuoga
    [1988] KLR 645
  • Aron C. Sharma v Ashana Raikundalia T/A Rairundalia & Co. Advocates
  • Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 Others
    [2015]
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, "Rabe v Gude (Environment & Land Case 237 of 2021) [2024] KEELC 3796 (KLR)", Case Analysis (2024). Environment & Land Case 237 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3796/eng@2024-03-14

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