Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in judgment (application dated 5/04/2024 arising from judgment delivered 20/03/2024)· [2024] KEELC 5142 (KLR)

Abdullahi & another v Mohamed & 2 others; Nairobi City County (Interested Party) (Environment & Land Case 725 of 2016 & 325 of 2019 (Consolidated)) [2024] KEELC 5142 (KLR)

Environment and Land Court
4 July 2024
2,776 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court paused a demolition and eviction order, but only because the property owner deposits Kshs. 6 million as security within 90 days.

What this practically means

#

Executive summary

#
The 2nd Defendant, Melihun Hassen Worseme, moved the Environment and Land Court at Nairobi by Notice of Motion dated 5/04/2024 under Sections 1A and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, seeking stay of execution of the judgment and decree of 20/03/2024, which directed her to vacate the suit property (L.R. No. 135663) and demolish structures thereon within 90 days, pending an intended appeal. The Plaintiff, Habiba Nyambura Abdullahi, opposed, arguing the appeal was unlikely to succeed, that the 1st Defendant who allegedly sold the land did not defend the suit, and that stay would only delay her enjoyment of the judgment. The court framed a single issue: whether stay pending appeal was merited, applying the three conditions in Order 42 Rule 6(2). On substantial loss, the court found that demolition of the 30 apartment units the applicant had developed would irreparably affect the appeal's essential core, though it noted the claimed Kshs. 150 million valuation was unsupported by evidence. Delay was not inordinate, the application having been filed about two weeks after judgment. On security, the court exercised its discretion and directed a deposit of Kshs. 6 million - the 2016 purchase price - in a joint interest-earning fixed deposit account within 90 days, failing which the stay lapses. The application was allowed and costs were made to abide the appeal.

Key legal issues

#
01

Whether the Applicant demonstrated substantial loss

Holding

Substantial loss established, limited to demolition of structures, since 30 apartment units exist on the suit property and demolition would render the appeal nugatory.

Reasoning

The court applied James Wangalwa and Century Oil: execution is lawful and mere eviction does not equal substantial loss; the applicant must show execution would irreparably affect the core of the appeal. The existence of 30 apartment units on the property was undisputed, so their demolition before the appeal would irreparably affect the appeal's essential core.

p. 5
02

Whether the application was made without unreasonable delay

Holding

No inordinate delay; judgment was delivered 20/03/2024 and the application dated and filed 5/04/2024.

Reasoning

The court compared the date of delivery of judgment with the date of the application and found the interval of about two weeks did not constitute inordinate delay, satisfying the second condition under Order 42 Rule 6(2).

p. 5
03

Whether security for the due performance of the decree should be furnished

Holding

Security ordered at Kshs. 6 million, the purchase price, deposited in a joint interest-earning fixed deposit account within 90 days, failing which the stay lapses.

Reasoning

Order 42 Rule 6(2)(b) mandatorily requires security. The court exercised its discretion, taking into account the applicant's claim that she purchased the property in 2016 at Kshs. 6 million, and directed a deposit of Kshs. 6 million as security for costs, with the stay lapsing on default.

p. 5

Legal principles established

#
  • An applicant for stay pending appeal must establish substantial loss, absence of unreasonable delay, and provision of security under Order 42 Rule 6(2).
  • Demolition of substantial developed structures on suit property before an appeal is heard amounts to substantial loss warranting stay.

Court orders

#
  1. 1.The Application dated 5/04/2024 is allowed in terms of Prayer (c) - stay of execution of the Judgment and Decree made on 20/03/2024 pending the hearing and determination of the intended appeal
  2. 2.The Applicant/2nd Defendant shall deposit Kshs. 6,000,000.00 in a joint fixed deposit interest earning account in the joint names of the advocates of both parties as security for costs within ninety (90) days from the date of the Ruling
  3. 3.Failure to comply with the security order, the stay shall automatically lapse
  4. 4.Costs of the Application to abide the Appeal

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 42 Rule 6(1) & (2); Order 51 Rule 1

Cases cited (6)

  • Antoine Ndiaye v African Virtual University
    [2015] eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Century Oil Trading Company Ltd vs. Kenya Shell Limited
    Nairobi (Milimani) HCMCA No. 1561 of 2007
  • Consolidated Marine vs. Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)
  • Aron C. Sharma vs. Ashana Raikundalia T/A Rairundalia & Co. Advocates
  • Butt vs. Rent Restriction Tribunal
    Civil App No. NAI 6 of 1979
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act; Order 42 Rule 6(1) & (2) and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Abdullahi & another v Mohamed & 2 others; Nairobi City County (Interested Party) (Environment & Land Case 725 of 2016 & 325 of 2019 (Consolidated)) [2024] KEELC 5142 (KLR)", Case Analysis (2024). Not stated in judgment (application dated 5/04/2024 arising from judgment delivered 20/03/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5142/eng@2024-07-04

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