Ita & 2 others v Njeru (Environment and Land Appeal E026 of 2023) [2024] KEELC 4476 (KLR)
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
#Key legal issues
#Substantial loss
Eviction of the appellants before the appeal is heard would render the appeal nugatory and the ensuing loss would be substantial.
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.
Unreasonable delay
Filing the application about a month after judgment did not amount to unreasonable delay.
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.
Security for due performance of the decree
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.
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.
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.Execution of the decree issued on 14.12.2023 is stayed pending hearing and determination of the appeal
- 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.Costs to be in the cause
- 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.