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ELCAllowedEnvironment & Land Case 159 of 2019· [2024] KEELC 6997 (KLR)

Kihara v Kihara & another (Environment & Land Case 159 of 2019) [2024] KEELC 6997 (KLR)

Environment and Land Court
16 October 2024
1,813 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court paused the cancellation of Rose Wambui Kihara's land title until her appeal is heard, provided she deposits Kshs. 250,000 as security within 30 days.

What this practically means

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Executive summary

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The Defendant/Applicant, Rose Wambui Kihara, moved the Nakuru Environment and Land Court by notice of motion dated 11th December 2023 seeking stay of execution of the judgment delivered on 5th October 2023, in which the court had ordered cancellation of the title deed in her name and registration of the suit land in the name of Kihara Thatu Gatu. She filed a notice of appeal on 9th October 2023 and argued she had an arguable appeal that would be rendered nugatory if she were locked out of her land. The Plaintiffs/Respondents opposed, contending the application was brought after inordinate unexplained delay, that the applicant was not in occupation and would suffer no substantial loss, that the land was to revert to an estate pending distribution, and that no security had been offered. Relying on Order 42 Rule 6(2) of the Civil Procedure Rules and the guidance in RWW V EKW and Butt vs Rent Restriction Tribunal, the court framed a single issue: whether stay of execution pending appeal should issue. It found the roughly two-month delay not unreasonable; found substantial loss because execution would cancel the applicant's title while the appeal was pending; and, noting her offer to abide by conditions, directed security of Kshs. 250,000/= deposited in court within 30 days and filing of the Record of Appeal within 30 days, failing which the stay would lapse. Costs of the application were ordered to abide the appeal.

Key legal issues

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01

Whether the application for stay of execution was brought without unreasonable delay

Holding

A delay of about two months from judgment to application was not unreasonable

Reasoning

Judgment was delivered on 5th October 2023, a notice of appeal was filed on 9th October 2023, and the application was filed on 11th December 2023. The court computed the interval at roughly two months and found that the application was thus brought without unreasonable delay, satisfying the first limb of Order 42 Rule 6(2).

p. 3
02

Whether the applicant would suffer substantial loss if stay is not granted

Holding

Yes - cancellation of the title registered in the applicant's name pending appeal constitutes potential substantial loss

Reasoning

The trial court had ordered the title deed in the applicant's name cancelled and the land registered in the name of Kihara Thatu Gatu. Since the appeal against that judgment is pending, the court reasoned that execution could cause the applicant loss through cancellation of the title. The respondents' argument that she was not in occupation did not displace this finding.

p. 3
03

Whether security for due performance of the decree should be imposed

Holding

Yes - the applicant, having offered to abide by conditions, was directed to deposit Kshs. 250,000/= as security for costs

Reasoning

The court noted the applicant had expressed readiness to abide by terms and conditions the court might impose, and held she could be so directed. The court exercised its discretion on security, requiring a deposit of Kshs. 250,000/= in court within 30 days, with the stay lapsing on non-compliance.

p. 3

Legal principles established

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  • The purpose of a stay of execution pending appeal is to preserve the subject matter so the appeal is not rendered nugatory, while weighing the successful litigant's right to the fruits of judgment
  • The conditions in Order 42 Rule 6(2) - substantial loss, absence of unreasonable delay, and security - govern the grant of stay pending appeal

Court orders

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  1. 1.Stay of execution of the decree issued on 5th October, 2023 pending the hearing and determination of the Appeal
  2. 2.The Applicant shall deposit a sum of Kshs. 250,000/= in the court's account being security for costs for the due performance of the decree within 30 days from the date of the Ruling
  3. 3.The Applicant to file the Record of Appeal within 30 days from the date of the Ruling
  4. 4.Failure to comply with orders (b) and (c), the order of stay shall automatically lapse
  5. 5.Costs of the application to abide the Appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and 6(2)
  • Civil Procedure RulesOrder XLI rule 4(2)(b) (as cited in Butt vs Rent Restriction Tribunal)

Cases cited (8)

  • Jaber Mohsen Ali & Another V Pricillah Boit & another
    [2014] eKLR
  • M/S Portreitz Maternity V James Karanga Kabia
  • Carter & Sons Ltd V Deposit Protection Fund Board & 2 Others
    Civil Appeal No. 291 of 1997
  • Arun C Sharma V Ashana Raikundalia T/A Rairundalia & Co. Advocates & 2 Others
    [2014] eKLR
  • Boniface Kariuki Wahome V Peter Nziki Nyamai & Another
    [2019] eKLR
  • M.O.M Amin Transporters Limited & Another V Alexander Ndungú Mbugua & 2 Others
    [2017] eKLR
  • RWW V EKW
    (2019) eKLR
  • Butt vs Rent Restriction Tribunal
    [1982] KLR 417
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules - stay of execution 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, "Kihara v Kihara & another (Environment & Land Case 159 of 2019) [2024] KEELC 6997 (KLR)", Case Analysis (2024). Environment & Land Case 159 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6997/eng@2024-10-16

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