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ELCAllowedNot stated in the judgment (arising from Nyahururu CM ELC No. 30 of 2020)· [2024] KEELC 7229 (KLR)

Kenya Forest Service v Kiniaru (Environment and Land Miscellaneous Application 1 of 2024) [2024] KEELC 7229 (KLR)

Environment and Land Court
17 October 2024
KBK. BOR
941 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 halted enforcement of a land judgment and gave the Attorney General 30 days to appeal, because the land is gazetted forest.

What this practically means

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Executive summary

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The Applicant, the Honourable Attorney General, applied by notice of motion dated 29/2/2024 for stay of execution of the judgment of Hon. Mercy Muhoro delivered on 11/12/2023 in Nyahururu CM ELC No. 30 of 2020, and for leave to appeal out of time against that judgment. The underlying dispute concerned Laikipia/Nyahururu/6777, a parcel said to form part of the gazetted Marmanet Forest. The Applicant attributed the delay to a network hitch at the virtual judgment delivery and to an omission by State Counsel, arguing the delay was not inordinate and that the appeal was arguable, with substantial loss arising because gazetted forest land might never be recovered if execution proceeded. The Respondent opposed, citing undue delay, absence of security, and the lack of merit in the intended appeal. In a ruling delivered virtually at Nairobi on 17 October 2024, K. Bor J framed a single issue: whether stay and extension of time should be granted. The court found the delay not inordinate and accepted that substantial loss would result if execution proceeded and the Applicant later succeeded on appeal. The court granted leave to file and serve the appeal within 30 days, stayed execution of the judgment pending the intended appeal, and awarded the Respondent the costs of the application.

Key legal issues

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01

Whether to grant stay of execution and leave to appeal out of time

Holding

The court found the delay not inordinate and that substantial loss would result if execution proceeded while the appeal was pending, given the suit property was gazetted forest land; stay and extension of time were granted.

Reasoning

The Applicant attributed the delay to a technical/network hitch at the virtual judgment delivery and to State Counsel's omission. The court found the delay not inordinate. On substantial loss, the suit property formed part of Marmanet Forest, a gazetted forest area never degazetted, so if execution proceeded and the Applicant succeeded on appeal, the gazetted forest land might never be recovered. Both limbs of the application were therefore allowed, with costs to the Respondent.

p. 2

Legal principles established

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    Court orders

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    1. 1.The Applicant is granted leave to file and serve its appeal within 30 days of the date of the ruling against the judgment delivered by Hon. Mercy Muhoro on 11/12/2023
    2. 2.Execution of the judgment delivered by Hon. Mercy Muhoro on 11/12/2023 is stayed pending hearing and determination of the Applicant's intended appeal
    3. 3.The Respondent is awarded the costs of the application
    On appeal from
    Chief Magistrate's Court at Nyahururu
    Nyahururu CM ELC No. 30 of 2020
    Jurisdiction invoked
    Inherent and appellate jurisdiction to grant stay of execution and extension of time to appeal from a subordinate court (not expressly stated in the judgment)

    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, "Kenya Forest Service v Kiniaru (Environment and Land Miscellaneous Application 1 of 2024) [2024] KEELC 7229 (KLR)", Case Analysis (2024). Not stated in the judgment (arising from Nyahururu CM ELC No. 30 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7229/eng@2024-10-17

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