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ELCAllowednot stated in extract (ELC suit, Malindi)· [2024] KEELC 4780 (KLR)

Beach Villas Limited v Mogeni & 4 others (Environment & Land Case 6 of 2020) [2024] KEELC 4780 (KLR)

Environment and Land Court
18 June 2024
MNMWANGI NJOROGE
1,984 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Malindi paused a land case pending appeal, confirming a stay can be granted on sound grounds even without proven substantial loss.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi (Mwangi Njoroge, J) dated 18 June 2024 on a notice of motion dated 24 January 2024 by the 2nd Defendant, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 rule 6 of the Civil Procedure Rules, seeking a stay/suspension of proceedings pending an intended appeal against a ruling of 14 December 2023. That earlier ruling had dismissed the 2nd Defendant's application for review of a decision of 18 July 2022, in which his preliminary objection challenging the court's jurisdiction - founded on a consent order adopted in Mombasa ELC No. 111 of 2012 - had been rejected. The Plaintiff opposed, submitting that the application was misconceived, that no substantial loss had been demonstrated, and that the intended appeal was frivolous and a delaying tactic. The court framed a single issue: whether proceedings should be stayed pending the intended appeal. It found the delay of about one month not inordinate, and accepted that although the 2nd Defendant failed to demonstrate substantial loss, a stay may be granted on any other sound ground. Since the vital issue on appeal concerned this court's jurisdiction, the court stayed the proceedings, conditioned on the applicant filing and serving the record of appeal within 30 days, failing which the stay stands automatically vacated, with a mention on 24 October 2024 to confirm compliance. The application was allowed in terms of prayer (iii).

Key legal issues

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01

Whether the 2nd Defendant satisfied the threshold for stay of proceedings pending appeal

Holding

The application was granted despite failure to demonstrate substantial loss, because the court found other sound grounds - the pending appeal on jurisdiction - for staying proceedings.

Reasoning

The court found the application filed timeously, about one month after the ruling. Although the 2nd Defendant failed to demonstrate substantial loss, the court held it could stay proceedings on any other sound ground. Since the intended appeal concerns the jurisdiction of the court, based on a consent order adopted in a different case, the court weighed the interests of justice and stayed proceedings to avoid expending resources pending the appeal, with conditions to prevent delay.

p. 4

Legal principles established

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  • The mere filing of an appeal does not operate as a stay of proceedings; the applicant must show sufficient reason, timeous application and substantial loss.
  • Stay of proceedings is a matter of judicial discretion to be exercised in the interest of justice.

Court orders

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  1. 1.Notice of motion dated 24/1/2024 granted in terms of prayer no (iii) - stay and/or suspension of all proceedings herein pending the hearing and determination of the intended appeal
  2. 2.The applicant shall file and serve the record of appeal within 30 days of this order
  3. 3.In default of filing and service of the record of appeal, the stay order shall stand automatically vacated
  4. 4.This matter shall be mentioned on October 24, 2024 to ascertain compliance with order (a) and, in the event of non-compliance, to issue it with a hearing date

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 42 rule 6 (1), (2), (4)
  • Constitution of KenyaArticle 164 (3) (a)

Cases cited (13)

  • Attorney General v Okiya Omtatah Okoiti & another
    [2019] eKLR
  • NIC Bank Ltd & 2 others v Mombasa Water Products Limited
    [2021] eKLR
  • Teachers Service Commission v Kenya National Union of Teachers & 3 others
    Sup. Ct. Application No. 16 of 2015 [2015] eKLR
  • Greyhound Company Limited v Globetrotter Agency Limited
    Civil Appeal E024 of 2022
  • Samvir Trustee Limited v Guardian Bank Limited
    Nairobi Milimani HCCC No. 795 of 1997
  • Mocha Hotel Limited v Kwanza Estates Limited
    [2023] KEELC eKLR
  • Jimmy Parnyumbe Luka & 3 others v Chairman Land Adjudication Committee, Leshuta Land Adjudication Section & 6 others
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] EA 227
  • Hassan Guyo Wakalo v Straman East Africa Ltd
    [2013] eKLR
  • Kenya Wildlife Services v James Mutembei
    [2019] eKLR
  • Re Global Tours & Travel Ltd
    HCWC No. 43 of 2000
  • Peter Kariuki Mburu & another v Neema Shah
    [2021] eKLR
  • Ezekiel Mule Musembi v H. Young & Company (E.A) Limited
    [2019] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 rule 6 of the Civil Procedure Rules

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, "Beach Villas Limited v Mogeni & 4 others (Environment & Land Case 6 of 2020) [2024] KEELC 4780 (KLR)", Case Analysis (2024). not stated in extract (ELC suit, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4780/eng@2024-06-18

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