Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment· [2024] KEELC 6127 (KLR)

Mugo & another v Riverside Court Welfare Group & another (Environment & Planning Appeal E001 of 2023) [2024] KEELC 6127 (KLR)

Environment and Land Court
24 September 2024
GKG Kemei
2,262 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Thika court paused the demolition of a Thika building pending appeal, but only if the owners push their appeal forward within 90 days.

What this practically means

#

Executive summary

#
The Applicants, aggrieved by a determination of the Kiambu County Physical & Land Use Planning Liaison Committee dated 16th June 2023 directing them to comply with Enforcement Notice No TKA-EN 102 issued on 18th May 2023 (which entails bringing down their development on Title No Thika Municipality Block 24/267), moved the Court by Notice of Motion dated 14th July 2023 seeking stay of execution pending appeal and a temporary injunction restraining enforcement of the notice. The Applicants argued they had applied for regularization, paid the requisite fees and a penalty of about Kshs. 250,000/-, so demolition would amount to double jeopardy. The 1st Respondent countered that a stay order had been served on 31st March 2023, that the applicants continued constructing in breach, and that regularization does not constitute approval to continue construction. The court applied Order 42 rule 6(2) and Order 40 rule 1 of the Civil Procedure Rules, and the principles in Butt v Rent Restriction Tribunal, Giella v Cassman Brown and Nguruman v Jan Bonde Nielsen. Observing that the application was filed barely two days before lapse of 30 days and was not timeously filed, the court nonetheless found that the parties' competing arguments could only be resolved on appeal and granted the stay so as not to render the appeal nugatory. It allowed the application purely in the interest of justice, clarified that no license to commence construction was granted, directed the Applicants to prosecute their appeal within 90 days failing which the orders would lapse, and awarded costs of the application to the Applicants.

Key legal issues

#
01

Stay of execution pending appeal

Holding

Stay granted because demolition of the subject property would render the intended appeal nugatory

Reasoning

The court applied Order 42 rule 6(2) and the Butt v Rent Restriction Tribunal principles. Noting the application was filed barely two days before lapse of 30 days and thus not timeously filed, the court nonetheless found arguments and counterarguments could only be resolved on appeal, and granted stay to preserve the appeal.

p. 4
02

Temporary injunction pending appeal

Holding

Status quo orders granted in the interest of justice to prevent wasting or damaging of the disputed property

Reasoning

Applying Order 40 rule 1 and the Giella and Nguruman principles, the court invoked the proviso allowing status quo orders preventing wasting, damaging or alienation of property, and allowed the application purely in the interest of justice, subject to the 90-day prosecution condition.

p. 5
03

Timeliness of the application

Holding

The application, filed about two days before lapse of the 30-day period, was not timeously filed

Reasoning

The court noted that the motion was lodged just before expiry of the 30-day period, and observed that this fell short of timeous filing if the grievances were genuine, though this did not ultimately defeat the application.

p. 4

Legal principles established

#
  • Stay of execution pending appeal is a discretionary power exercised on settled principles so as not to render an appeal nugatory
  • A prima facie case in civil applications is one where a right has apparently been infringed calling for rebuttal

Court orders

#
  1. 1.Stay of execution, implementation and/or operation of the Liaison Committee determination dated 16th June 2023 pending the lodging, hearing and determination of the Appeal
  2. 2.Status quo orders restraining wasting, damaging or alienation of the property pending appeal
  3. 3.Applicants directed to prosecute their appeal within ninety (90) days failing which the orders shall automatically lapse
  4. 4.Applicants to meet the costs of the Application

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 95
  • Civil Procedure RulesOrder 42 Rule 6(1) & (2), Order 40 rule 1, Order 45, Order 50 Rules 1-7, Order 51 rule 1
  • Physical and Land Use Planning Act (PLUPA)Sections 57(2) and 72(5)

Cases cited (5)

  • Butt Vs. Rent Restriction Tribunal
    [1982] KLR 417
  • Giella Vs. Cassman Brown
    (1973) EA 358
  • Nguruman Limited Vs. Jan Bonde Nielsen & 2 Others
    CA No.77 of 2012 (2014) eKLR
  • Mrao Ltd Vs. First American Bank of Kenya Ltd
    (2003) eKLR
  • Moses C. Muhia Njoroge & 2 Others Vs. Jane W. Lesaloi and 5 Others
    [2014] eKLR
On appeal from
County Government of Kiambu Physical & Land Use Planning Liaison Committee
Complaint dated 10/5/2023
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 95 of the Civil Procedure Act and Order 42 Rule 6(2), Order 45, Order 50 and Order 51 of the Civil Procedure Rules; appeal against Liaison Committee determination under the Physical and Land Use Planning Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mugo & another v Riverside Court Welfare Group & another (Environment & Planning Appeal E001 of 2023) [2024] KEELC 6127 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6127/eng@2024-09-24

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