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ELCDismissedNotice of Motion dated 3rd April 2024 (in the suit over land parcel Samia/Butabona/836)· [2024] KEELC 6792 (KLR)

Odakha & another v Lubia (Represented by Christopher Maloba Ogokha ) (Environment & Land Case E028 of 2021) [2024] KEELC 6792 (KLR)

Environment and Land Court
17 October 2024
BOBoaz N. Olao
1,980 words in judgment
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The bottom line

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The Environment and Land Court dismissed a landowner's bid to pause execution of a judgment, warning that unexplained delay and missing security sink stay applications.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (Boaz N. Olao, J) determines a Notice of Motion dated 3rd April 2024 by Christopher Maloba Ogokha, donee of a power of attorney for the Defendant, Imelda Were Lubia, seeking stay of execution of the judgment of 11th May 2023 and an order of inhibition over land parcel Samia/Butabona/836 pending appeal, Court of Appeal Kisumu Civil Appeal No E153 of 2023. In the earlier judgment the Court held the Defendant holds the title in trust for herself and the Plaintiffs and directed registration of the Plaintiffs with 8.0 acres and the Defendant with 3.8 acres. The application was premised on Order 42 Rule 6 of the Civil Procedure Rules. The Court outlined the conditions for stay: sufficient cause, substantial loss, absence of unreasonable delay, and security. It held that filing the appeal constituted sufficient cause, but the Defendant failed on the other grounds: no evidence supported her assertion that the Plaintiffs would dispose of the land (substantial loss must be proved with specific details); the application, filed about eleven months after judgment delivered electronically, was unexplained and unreasonable; and no security was offered or willingness to abide by conditions shown, leading the Court to conclude the motive was to obstruct the Plaintiffs' enjoyment of the judgment. The Court also ruled that the strength of the pending appeal is not a consideration for the trial court. Section 68(1) of the Land Registration Act governs inhibition, but since stay was refused, inhibition was equally unjustified. The application was dismissed with costs.

Key legal issues

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01

Substantial loss

Holding

Defendant failed to prove substantial loss; allegations of intended disposal of the land were unsupported

Reasoning

The Defendant asserted the Plaintiffs might dispose of the suit land to third parties, but placed no evidence before the Court supporting that claim. Following Kenya Shell v Kibiru and Machira, substantial loss is the cornerstone of a stay application and must be proved with specific details and particulars; mere assertion does not suffice.

p. 3
02

Unreasonable delay

Holding

The 11-month delay in filing the application was unexplained and unreasonable

Reasoning

Judgment was delivered electronically on 11th May 2023 and the application filed on 3rd April 2024. No explanation was offered for the delay. Without an explanation, the Court had no basis to exercise its discretion in favour of the Defendant.

p. 4
03

Security

Holding

The Defendant offered no security nor willingness to abide by conditions

Reasoning

Order 42 Rule 6(2) requires the applicant to furnish security. The Defendant neither offered security nor intimated willingness to abide by conditions the Court might impose, leading the Court to conclude her motive was to obstruct the Plaintiffs from enjoying the fruits of their judgment.

p. 4
04

Order of inhibition

Holding

Inhibition declined because stay had been refused

Reasoning

Under Section 68(1) of the Land Registration Act an inhibition restricts dealings with registered land and is akin to a prohibitory injunction pending trial. Since the Court declined to stay execution, preservation of the property through inhibition was not justified on the same findings.

p. 4

Legal principles established

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  • A stay of execution requires sufficient cause, substantial loss, absence of unreasonable delay and security
  • Substantial loss must be proved with specific details, not mere assertion
  • The arguability of an appeal to the Court of Appeal is not a consideration for the trial court deciding an application for stay

Court orders

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  1. 1.The Notice of Motion dated 3rd April 2024 is dismissed with costs
  2. 2.The prayer for stay of execution of the judgment of 11th May 2023 is dismissed
  3. 3.The prayer for an order of inhibition over land parcel Samia/Butabona/836 is declined

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Land Registration ActSection 68(1)

Cases cited (6)

  • Vishram Ravji Halai & Another -v- Thornton & Turpin (1963) LTD
    1990 KLR 365
  • Kenya Shell Ltd -v- Kibiru
    1986 KLR 410
  • Machira t/a Machira & Company Advocates -V- East African Standard (no 2)
    2002 KLR 63
  • Wycliffe Sikuku Walusaka -v- Philip Kaita Wekesa
    2020 eKLR
  • Philip Mwangi Githinji -v- Grace Makarima Githinji
    2004 eKLR
  • Giela -v- Cassman Brown & Company LTD
    1973 E.A 358
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Section 68(1) of the Land Registration 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, "Odakha & another v Lubia (Represented by Christopher Maloba Ogokha ) (Environment & Land Case E028 of 2021) [2024] KEELC 6792 (KLR)", Case Analysis (2024). Notice of Motion dated 3rd April 2024 (in the suit over land parcel Samia/Butabona/836). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6792/eng@2024-10-17

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