Kirikoini Investments Limited & another v Ngene (Environment and Land Appeal E021 of 2024) [2024] KEELC 3792 (KLR)
The bottom line
#Kenya's Environment and Land Court threw out a stay of execution because the applicants filed the wrong affidavit and proved no real loss.
What this practically means
#Executive summary
#Key legal issues
#Competency of the notice of motion
The application was fatally incompetent because it referenced a supporting affidavit of P M G Junior that was never filed, and the affidavits actually filed (by Joseph Kibiru) had no nexus to the application. Further, no authority or company resolution was shown for the deponent to act for the 1st Appellant company.
Order 42 Rule 6(2) applications must be supported by a competent affidavit referenced at the foot of the application. The referenced affidavit was non-existent; the Kibiru affidavits were unreferenced and unsupported by authority under Order 9 Rule 2 and the Supreme Court's decision in Fanikiwa Limited on corporate authority.
Substantial loss for stay of execution
The Applicants failed to demonstrate any substantial loss. Neither the application nor the affidavits highlighted substantial loss, and their claim of occupation and development was inconsistent with an existing injunction restraining them from the suit property.
Substantial loss is the cornerstone of stay applications. Possession contrary to the temporary injunction issued in ELC Civil Appeal No. 2 of 2018 would amount to contempt of court and cannot ground the court's discretion. No evidence of the alleged development was tendered, and the burden of proof under Sections 107-109 of the Evidence Act was not discharged.
Discretion to grant stay and fruits of judgment
A decree holder is entitled to the fruits of judgment absent exceptional circumstances; the Applicants placed no such circumstances before the court.
Stay of execution is discretionary and requires balancing the competing interests of decree holder and judgment debtor, taking into account the parties' conduct, equity and the interests of justice. On the totality of the evidence, the balance did not favour the Applicants, and the court should not aid a party acting in breach of lawful court orders.
Legal principles established
#- An application must be supported by the affidavit it references; a supporting affidavit not adverted to or referenced in the application has no nexus to it
- A limited liability company can only act through a duly appointed and authorized officer under the corporate seal
- Substantial loss is the cornerstone for granting stay of execution; mere assertions are insufficient absent evidence
Court orders
#- 1.The Application dated 22nd February 2024 is dismissed with costs to the Respondent
- 2.The interim orders and/or undertaking issued on 14th March 2024 are discharged (vacated)
- On appeal from
- Chief Magistrate's Court, Milimani
- MCELC No. 4955 of 2015
- Jurisdiction invoked
- Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 (appellate jurisdiction over the Chief Magistrate's Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirikoini Investments Limited & another v Ngene (Environment and Land Appeal E021 of 2024) [2024] KEELC 3792 (KLR)", Case Analysis (2024). ELC Civil Appeal (Nairobi) - Notice of Motion dated 22nd February 2024, arising from MCELC No. 4955 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3792/eng@2024-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.