Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2024] KEELC 4476 (KLR)

Ita & 2 others v Njeru (Environment and Land Appeal E026 of 2023) [2024] KEELC 4476 (KLR)

Environment and Land Court
15 April 2024
2,308 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court paused eviction orders on disputed Mbeere land, allowing an appeal to be heard first, provided the occupants deposit Kshs 20,000 as security.

What this practically means

#

Executive summary

#
This was a ruling by the Environment and Land Court at Embu (A. Kaniaru J) on a Notice of Motion dated 15.12.2023 brought by the 1st, 2nd and 3rd appellants, who were defendants in the lower court, seeking stay of execution of a decree issued on 14.12.2023 following a judgment delivered on 16.11.2023 in favour of the respondent. The decree required the appellants to vacate and deliver vacant possession of land parcel Mbeere/Kirima/2999 within 90 days. The applicants argued they had occupied the land since 1987, had built homes and developments, and that eviction would render them landless and destitute and the appeal nugatory; they filed the application within the appeal period and offered a bank guarantee as security. The respondent countered that the applicants occupied only part of the land, had alternative clan land (Mbeere/Kirima/3368), had shown no substantial loss, and that no Mbeere community land laws existed as alleged. The court applied Order 42 rule 6 of the Civil Procedure Rules and the principles in Butt v Rent Restriction Tribunal, Halai v Thorton and Turpin, and Absalom Dova v Tarbo Transporters. It found substantial loss (eviction would render the appeal nugatory), no unreasonable delay (application filed about a month after judgment), and fixed security of Kshs 20,000 to be deposited in court within 21 days. The application was allowed in terms of prayer 3, with costs in the cause.

Key legal issues

#
01

Substantial loss

Holding

Eviction of the appellants before the appeal is heard would render the appeal nugatory and the ensuing loss would be substantial.

Reasoning

Although the appellants tendered no independent evidence of their long occupation and developments, the respondent's own plaint implied they had encroached, built structures and dwelt on the land. The suit was solely over ownership, the trial court found for the respondent and ordered eviction; if eviction were enforced before the appeal was determined, the appeal would be rendered nugatory and the resulting loss substantial.

p. 4
02

Unreasonable delay

Holding

Filing the application about a month after judgment did not amount to unreasonable delay.

Reasoning

The trial court's judgment was delivered on 16.11.2023 and the application was filed on 18.12.2023, roughly a month later. The court found this interval did not constitute unreasonable delay under Order 42 rule 6(2)(a) of the Civil Procedure Rules.

p. 5
03

Security for due performance of the decree

Holding

The applicants' offer of a bank guarantee sufficed in principle, but the court fixed its own security of Kshs 20,000 to be deposited in court within 21 days.

Reasoning

The applicants expressed willingness to provide security by way of a bank guarantee or as directed. The court held it is not bound by the security offered by applicants and exercised its discretion under Order 42 rule 6 to direct deposit of Kshs 20,000 in court as security for performance of the decree.

p. 5

Legal principles established

#
  • To succeed on an application for stay of execution pending appeal, an applicant must demonstrate substantial loss, that the application was made without undue delay, and willingness to furnish security for due performance of the decree.
  • The power to grant stay of execution is discretionary and must be exercised so as not to render an appeal nugatory.

Court orders

#
  1. 1.Execution of the decree issued on 14.12.2023 is stayed pending hearing and determination of the appeal
  2. 2.The applicants to deposit the sum of Kshs 20,000 in court as security for the performance of the decree within 21 days of the judgment
  3. 3.Costs to be in the cause

Authorities

#

Legislation

  • Constitution of KenyaArticle 48
  • Environment and Land Court ActSections 3(1) and 13(7)(a)
  • Civil Procedure ActSections 1B and 63(e)
  • Civil Procedure RulesOrder 42 rule 6 and rule 7

Cases cited (10)

  • Focin Motorcycle Co. Ltd v Ann Wambui Wangui & another
    [2018] eKLR
  • Antoine Ndiaye v African Virtual University
    [2008] eKLR
  • Patrick Kithaka Borici & another v Shadrack Nyaga Njeru
    [2019] eKLR
  • Absalom Dova v Tarbo Transporters
    [2013] eKLR
  • Machira t/a Machira & Co. Advocates v East African Standard
    [2002] eKLR
  • Kenya Shell Ltd v Benjamin Karuga Kibiru & another
    [1986] eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Francis K. Chabari & another v Mwarania Gaichura Kairubi
    [2022] eKLR
  • Elena Doudaladova Korir v Kenyatta University
    [2014] eKLR
  • Halai and another v Thorton and Turpin [1963] Ltd
    [1990] KLR 365
On appeal from
Lower court (magistrates' court)
Not stated in the judgment
Jurisdiction invoked
Article 48 of the Constitution of Kenya 2010; Sections 3(1) and 13(7)(a) of the Environment and Land Court Act 2011; Sections 1B and 63(e) of the Civil Procedure Act; Order 42 rule 6 of the Civil Procedure Rules 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ita & 2 others v Njeru (Environment and Land Appeal E026 of 2023) [2024] KEELC 4476 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4476/eng@2024-04-24

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