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ELCAllowedELC Case No. 132 of 2019 [OS]· [2024] KEELC 4394 (KLR)

Dzuya & another v Anjarwalla (Legal Representative Of The Estate Of Hussein Karimbhai Anjarwalla) (Environment & Land Case 132 of 2019) [2024] KEELC 4394 (KLR)

Environment and Land Court of Kenya
17 May 2024
7,282 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Mombasa court gave landowners extra time to appeal and paused eviction proceedings, but only after depositing half the judgment amount as security.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (L. L. Naikuni J) determined a Notice of Motion dated 31st July 2023 by the plaintiffs, Davis Mwatela Dzuya and Masudi Bakari Musa, seeking stay of execution of the court's judgment of 10th May 2023 (an adverse possession claim dismissed on the finding that their occupation was permissive as employees of the defendant), leave to file a Notice of Appeal out of time, and that the draft Notice of Appeal be deemed filed. The defendant, Salim Anjarwalla, administrator of the estate of Hussein Karimbhai Anjarwalla, opposed, arguing the delay of over 80 days was inordinate and unexplained and that no substantial loss was shown. The court framed three issues: extension of time, stay of execution, and costs. Applying Section 95 of the Civil Procedure Act, Rule 4 of the Appellate Jurisdiction Act, and the Salat and Paul Wanjohi Mathenge principles, it held the 82-day delay not inordinate, blaming the court registry, and granted leave. On stay under Order 42 Rule 6(2), it found substantial loss (risk of eviction) proved and the application timeous, but noted the applicants had not provided for security; treating the conditions as conjunctive, it granted stay conditional on furnishing security equivalent to half the decretal sum. The application was allowed in its entirety subject to pre-conditions, with no orders as to costs.

Key legal issues

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01

Extension of time to file Notice of Appeal

Holding

The delay of 82 days was not inordinate; the explanation (pursuing certified copies of proceedings and judgment, with delay occasioned by the court registry) was plausible, cogent and sufficient, and the defendant would suffer no prejudice as he could still realise his decree if no stay issued.

Reasoning

The court applied Section 95 of the Civil Procedure Act and Rule 4 of the Appellate Jurisdiction Act, guided by Paul Wanjohi Mathenge and Nicholas Kiptoo Arap Korir Salat. It found the applicants followed up with the registry within reasonable time, that the delay was occasioned by the fault of the court registry, and that it would be unfair to blame them for it.

p. 7
02

Stay of execution pending appeal

Holding

Substantial loss was proved (risk of eviction and destitution), the application was made without undue delay, but the applicants failed to provide for security; stay granted conditional on furnishing security.

Reasoning

The court applied Order 42 Rule 6(2) and the Butt v Rent Restriction Tribunal principles. It found applicants would suffer substantial loss as they risked eviction from the suit property, held the application timeous, but noted no security was provided. It invoked its discretion to order security equivalent to half the decretal sum as a condition for stay.

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Security for due performance of the decree

Holding

Security is mandatory under Order 42 Rule 6(2)(b); the applicants made no provision for it, so the court imposed security equivalent to half the decretal sum in a fixed interest-earning account as a condition of stay.

Reasoning

Relying on Aron C. Sharma and Gianfranco Manenthi, the court noted the purpose of security is to guarantee due performance of the decree, not to punish the judgment debtor, and that the winner of litigation should not be denied the fruits of judgment if the appeal fails. The conditions being conjunctive, stay could issue only upon fulfilment of the security condition.

p. 13
04

Costs of the application

Holding

Costs follow the event under Section 27(1) of the Civil Procedure Act, but the court reserved its discretion and ordered no costs.

Reasoning

The court cited Supreme Court authority that the successful party is entitled to costs unless exceptional circumstances exist. It exercised its discretion in favour of neither party, reserving costs and directing that there be no orders as to costs.

p. 13

Legal principles established

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  • The court's discretion to extend time is unfettered but must be exercised judicially, considering the length and reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent
  • The three conditions for granting stay of execution pending appeal under Order 42 Rule 6(2) are conjunctive and not disjunctive and must be met simultaneously
  • Substantive justice demands that a party be accorded every reasonable opportunity to ventilate grievances on appeal

Court orders

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  1. 1.The Notice of Motion application dated 31st July, 2023 be and is found to have merit hence allowed in its entirety but upon fulfilment of stated pre-conditions
  2. 2.An order to stay execution of the Court's Judgment and subsequent decree/order arising from the Judgment of the Honourable Justice L. L. Naikuni delivered on 10th May, 2023 pending the hearing and determination of the intended appeal in the Court of Appeal
  3. 3.Leave granted to the Plaintiff/Applicant to file their Notice of Appeal out of time
  4. 4.The draft Notice of Appeal filed herein be deemed as duly filed upon payment of the requisite court fees/charges
  5. 5.The Plaintiffs/Applicants to furnish within 45 days from the date of delivery of the Ruling a tangible security for the due performance of the Decree pending the hearing and final determination of the impugned appeal
  6. 6.There shall be no orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 27(1), 95
  • Civil Procedure Rules, 2010Order 40 Rule 2; Order 42 Rule 6; Order 50 Rules 6 and 7; Order 51 Rule 1
  • Appellate Jurisdiction Act, Cap 9Section 7; Rule 4
  • Constitution of Kenya, 2010Article 43

Cases cited (21)

  • Church of God East Africa & another v Dinah Buluma
    [2019] eKLR
  • Turea Limited t/a Dr. Mattress v Mohamed
    (Civil Application E030 of 2022) [2022] KECA 1271 (KLR) (18 November 2022)
  • Ratnam v Cumarasamy
    (1964) 3 All ER 933
  • Leo Sila Mutiso v Rose Hellen Wangare Mwangi
    Civil Application No. Nai 255 of 1997 (ur)
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
  • Dilpack Kenya Limited v William Muthama Kitonyi
    [2018] eKLR
  • Mugo v Wanjiru
    [1970] EA 481
  • Habo Agencies Limited v Wilfred Odhiambo Musingo
    [2015] eKLR
  • Paul Wanjohi Mathenge v Duncan Gichane Mathenge
    [2013] eKLR
  • Butt v Rent Restriction Tribunal
    {1982} KLR 417
  • Consolidated Marine v Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)
  • Kenya Shell Limited v Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) KAR 1018
  • Mukuma v Abuoga
    (1988) KLR 645
  • Absalom Dora v Turbo Transporters
    (2013) (eKLR)
  • Geofrey Muriungi & another v John Rukunga M'imonyo suing as Legal representative of the estate of Kinoti Simon Rukunga (Deceased)
    [2016] eKLR
  • Aron C. Sharma v Ashana Raikundalia T/A Rairundalia & Co. Advocates
  • Gianfranco Manenthi & Another v Africa Merchant Assurance Company Ltd
    [2019] eKLR
  • James Wangalwa & Another vs. Agnes Naliaka Cheseto
  • Jasbir Rai Singh v Tarchalan Singh
    eKLR (2014)
  • Cecilia Karuru Ngayo v Barclays Bank of Kenya Limited
    eKLR (2014)
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A & 95 of the Civil Procedure Act, Cap. 21; Order 40 Rule 2, Order 50 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, 2010; Section 7 of the Appellate Jurisdiction Act, Cap 9

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, "Dzuya & another v Anjarwalla (Legal Representative Of The Estate Of Hussein Karimbhai Anjarwalla) (Environment & Land Case 132 of 2019) [2024] KEELC 4394 (KLR)", Case Analysis (2024). ELC Case No. 132 of 2019 [OS]. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4394/eng@2024-05-17

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