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ELCDismissedNakuru CM ELC No. 343 of 2018 (appeal herein - ruling of 21/2/2024)· [2024] KEELC 5711 (KLR)

Thiong’o & another v Ng’ang’a (Environment and Land Appeal E012 of 2024) [2024] KEELC 5711 (KLR)

Environment and Land Court
26 July 2024
433 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicants, Margaret Kwamboka Thiong'o and Naomi Wamaitha Kagia, moved the Environment and Land Court at Nakuru for an order staying execution of the ruling of Hon. B. O. Ochieng CM delivered on 21/2/2024 in Nakuru CM ELC No. 343 of 2018 (Samuel Ng'ang'a v Margaret Kwamboka Thiong'o and Naomi Wamaitha Kagia), pending the hearing of their appeal, with costs of the application to be in the appeal. They argued that the ruling had the effect of transferring parcel Nakuru/Municipality/Block 22/505 - a parcel different from the pleaded Nakuru/Municipality/Block 22/177 - to the respondent, that the parcel belongs to neither party and was never part of the pleadings or evidence, and that the orders violated Articles 40 and 50 of the Constitution because the owner of parcel 505 would be deprived of property unheard. The respondent opposed, contending that no substantial loss was demonstrated, that the applicants purported to appeal on behalf of a person whose existence was unknown, that commenced execution alone does not prove substantial loss, and that no security had been provided. The court found that parcel 505 belongs to George Mwadime Ntonge, a non-party, so the applicants could not complain on his behalf. Although the application was filed without inordinate delay, the applicants demonstrated no interest in the property and hence no substantial loss. The application was dismissed with costs to the respondent on 26 July 2024 (A.O. Ombwayo J).

Key legal issues

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01

Whether substantial loss was demonstrated to warrant stay of execution pending appeal

Holding

The application failed because the applicants had no interest in the suit property and thus suffered no substantial loss.

Reasoning

The court found that the land affected by the orders, Nakuru/Municipality/Block 22/505, belongs to a third party, George Mwadime Ntonge, who is not a party to the suit. Although the application was filed without inordinate delay, the applicants could not demonstrate any interest in that property or any loss, substantial or otherwise, if stay were not granted. The application was therefore dismissed with costs.

p. 2
02

Whether the applicants could litigate the property rights of a non-party owner

Holding

The applicants could not lodge a complaint on behalf of the owner of Nakuru/Municipality/Block 22/505, who was not a party to the suit.

Reasoning

The applicants' grievance was that the ruling transferred land belonging to George Mwadime Ntonge, a stranger to the proceedings, in breach of Articles 40 and 50 of the Constitution. The court held that since the owner is not a party, the applicants, having no interest of their own in the property, had no locus to complain on his behalf, and their alleged substantial loss therefore failed.

p. 2

Legal principles established

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  • A party cannot lodge an application or complaint on behalf of a non-party who owns the property affected; only a person with an interest in the property can demonstrate substantial loss for stay.

Court orders

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  1. 1.The application for stay of execution pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40 and 50
On appeal from
Chief Magistrate's Court (Nakuru)
Nakuru CM ELC No. 343 of 2018
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over an appeal from the Chief Magistrate's Court (application for stay of execution pending appeal)

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, "Thiong’o & another v Ng’ang’a (Environment and Land Appeal E012 of 2024) [2024] KEELC 5711 (KLR)", Case Analysis (2024). Nakuru CM ELC No. 343 of 2018 (appeal herein - ruling of 21/2/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5711/eng@2024-07-26

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