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)
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
#Key legal issues
#Whether the Applicant demonstrated substantial loss
Substantial loss established, limited to demolition of structures, since 30 apartment units exist on the suit property and demolition would render the appeal nugatory.
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.
Whether the application was made without unreasonable delay
No inordinate delay; judgment was delivered 20/03/2024 and the application dated and filed 5/04/2024.
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).
Whether security for the due performance of the decree should be furnished
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.
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.
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.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.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.Failure to comply with the security order, the stay shall automatically lapse
- 4.Costs of the Application to abide the Appeal
- 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.