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ELCPartially AllowedNot stated on the face of the judgment· [2024] KEELC 6263 (KLR)

Kisotu (Suing as the legal representative of the Estate of the Late Gichuki Wanguyo) & another v Nchuul & 3 others (Environment and Land Appeal E006 of 2024) [2024] KEELC 6263 (KLR)

Environment and Land Court
26 September 2024
2,856 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

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A Narok court paused a land case for six months, letting the losing party appeal after depositing Kshs 300,000 as security.

What this practically means

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Executive summary

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The Environment and Land Court, Narok (Mbogo C.G., J) determined a notice of motion dated 10th June 2024 by the appellants seeking stay of further proceedings in Narok CMCC ELC No 95 of 2019 and leave to appeal against a ruling of Hon. H. M. Nyaberi delivered on 14th May 2024, which dismissed their application for contempt and nullified interlocutory injunction orders issued on 9th September 2019 on the ground that they had lapsed after 12 months. The applicants argued the orders by their wording continued until determination of the suit, that the respondents had knowledge of them and disposed of parcel No 408 (excised into parcels 1786 and 1787) encroaching on parcels 84 and 277, causing substantial loss. The respondents opposed, contending the orders were non-existent after lapse of 12 months, were never personally served, did not prohibit use of parcels 1786-1789, and that the applicants had no arguable appeal. The court framed the issue as whether stay of further proceedings pending appeal should issue. Distinguishing stay of proceedings from stay of execution, it applied the principles in Re Global Tours & Travels Limited (Ringera J) and Halsbury's Laws of England, holding that the application was filed without unreasonable delay, that continued encroachment established loss, and that the appeal was arguable though not frivolous-proof was unnecessary at that stage. The court allowed the motion: deemed the memorandum of appeal duly filed, granted a stay of proceedings for 6 months, ordered security of Kshs 300,000 in a joint interest-earning account within 45 days, required the record of appeal within 14 days, fixed mention for 19th November 2024, and ordered costs in the cause.

Key legal issues

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01

Whether to grant stay of further proceedings pending appeal

Holding

Stay granted: application filed without delay, substantial loss from continued encroachment established, and the appeal raises arguable grounds deserving ventilation in the interest of justice, subject to security and timelines

Reasoning

The court distinguished stay of proceedings from stay of execution, holding that the key factor is whether the application was made without unreasonable delay. Applying Ringera J's principles in Re Global Tours & Travels, it weighed expeditious disposal, prima facie arguability of the appeal, judicial time and expeditiousness. Finding the appeal not frivolous and loss from encroachment likely, discretion was exercised in the applicants' favour, tempered by security and timelines to prevent abuse of the stay.

p. 5
02

Whether the appeal is arguable

Holding

The court declined to assess prospects but found the memorandum of appeal not frivolous and its grounds worth ventilating

Reasoning

Relying on the authority that the merits need only be arguable, not probable to succeed, the court examined the grounds of appeal annexed to the application and concluded they should be ventilated in the interest of justice. It noted the record of appeal was yet to be filed but held that a party's right to be heard on appeal justified the stay, provided timelines ensured the successful party was not prejudiced.

p. 5

Legal principles established

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  • Stay of proceedings pending appeal is a matter of judicial discretion exercised in the interest of justice, weighing factors including expeditious disposal, arguability of the appeal and expeditiousness of the application
  • Stay of proceedings should be imposed sparingly and only in exceptional cases

Court orders

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  1. 1.The memorandum of appeal dated 10th June 2024 annexed to the application is deemed as duly filed
  2. 2.A stay of further proceedings in Narok Chief Magistrates Court ELC No 95 of 2019 is granted pending the hearing and determination of the appeal and shall subsist for a period of 6 months
  3. 3.The appellants/applicants shall deposit Kshs. 300,000/- as security for costs in a joint interest earning account within 45 days
  4. 4.The appellants/applicants to file and serve their record of appeal within 14 days
  5. 5.Further mention on 19th November 2024 to confirm compliance
  6. 6.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 40 Rule 6
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (5)

  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
  • David Wambua Ngii v Silas Alembi & others
    [2014] eKLR
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Kenya Wildlife Service v James Mutembei
    [2019] eKLR
  • Re Global Tours & Travels Limited
    Nairobi High Court Winding Up Cause No 43 of 2000
On appeal from
Chief Magistrates Court, Narok
Narok CMCC ELC No 95 of 2019
Jurisdiction invoked
Order 42 Rule 6 and Order 51 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Kisotu (Suing as the legal representative of the Estate of the Late Gichuki Wanguyo) & another v Nchuul & 3 others (Environment and Land Appeal E006 of 2024) [2024] KEELC 6263 (KLR)", Case Analysis (2024). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6263/eng@2024-09-26

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