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ELCAllowedNot stated in the extract (suit filed 25th February 2013)· [2024] KEELC 6995 (KLR)

Free Pentecostal Fellowship in Kenya Registered Trustees v Macedonia Resort Club Limited & 2 others (Environment and Land Case Civil Suit 15 of 2013) [2024] KEELC 6995 (KLR)

Environment and Land Court
23 October 2024
SOS. Okong'o
1,886 words in judgment
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The bottom line

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The Environment and Land Court paused enforcement of a judgment cancelling a Kisumu land title, so long as the losing party deposits Kshs. 500,000 within 30 days.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kisumu (S. Okong'o, J) determined a Notice of Motion dated 8th April 2024 by the 1st and 2nd Defendants seeking a stay of execution of the court's judgment of 29th February 2024 pending an appeal to the Court of Appeal. In the underlying suit, filed on 25th February 2013, the Plaintiff (Free Pentecostal Fellowship in Kenya) challenged the allotment and registration of Unsurveyed Plot No. 'A'-Kisumu Municipality in the 1st Defendant's name, alleging fraud. The February 2024 judgment found the allotment fraudulently issued, cancelled Grant No. I.R 151216 for L.R No. 29685, directed the 3rd Defendant to consider the Plaintiff's pending allotment application within 90 days, and awarded the Plaintiff half the costs. The Defendants applied for stay under Order 42 Rule 6 of the Civil Procedure Rules, contending substantial loss and offering to furnish security including a bank guarantee; the Plaintiff opposed, arguing the Defendants had never been in possession and the land would remain available to the ultimate winner. The court applied the Kenya Shell Limited v Karuga test, found the application filed without unreasonable delay, found substantial loss because the Defendants risked losing the suit property if their appeal succeeded, and accepted the offer of security. The application was allowed in terms of prayer (b), conditioned on a deposit of Kshs. 500,000/- in a joint interest-earning account within 30 days, failing which the stay lapses. An inhibition on further dealings with L.R No. 29685 was issued, the status quo on occupation and use was maintained, and each party was ordered to bear its own costs of the application.

Key legal issues

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Whether the conditions for stay of execution under Order 42 Rule 6(2) were satisfied

Holding

The court was satisfied that the application was brought without unreasonable delay, that the Defendants would suffer substantial loss (risk of losing the suit property if their appeal succeeded), and that security was offered; the stay was granted subject to a Kshs. 500,000 deposit.

Reasoning

The court applied the twin conditions in Order 42 Rule 6(2): substantial loss and security, plus no unreasonable delay. It found the application filed promptly after the 29th February 2024 judgment. The judgment had cancelled the 1st Defendant's title, so without a stay the Defendants risked losing the property even if they succeeded on appeal. The Defendants offered security by way of a bank guarantee, which the court converted into a monetary deposit held in a joint interest-earning account.

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 29th February 2024 granted in terms of prayer (b) of the Notice of Motion dated 8th April 2024
  2. 2.Defendants to deposit Kshs. 500,000/- in an interest-earning bank account in the joint names of the advocates on record within 30 days, in default of which the stay shall stand discharged without further reference to the court
  3. 3.An inhibition inhibiting registration of any other or further dealings with L.R No. 29685, Grant No. I.R 151216 pending hearing and determination of the Defendants' appeal
  4. 4.Status quo as at the date of the ruling relating to occupation and use of the suit property by the Plaintiff to be maintained pending the appeal
  5. 5.Each party to bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (1)

  • Kenya Shell Limited v. Karuga
    (1982 – 1988) I KAR 1018
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (court appealed from granting stay pending appeal to the Court of 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, "Free Pentecostal Fellowship in Kenya Registered Trustees v Macedonia Resort Club Limited & 2 others (Environment and Land Case Civil Suit 15 of 2013) [2024] KEELC 6995 (KLR)", Case Analysis (2024). Not stated in the extract (suit filed 25th February 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6995/eng@2024-10-23

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