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ELCAllowedNot stated in judgment· [2015] KEELC 393 (KLR)

George Muna & another v Salome Waruare [2015] KEELC 393 (KLR)

Environment and Land Court of Kenya
11 June 2015
1,232 words in judgment
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The bottom line

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Kenya's Environment and Land Court granted developers a pause on executing a land judgment, but only after they promised security and swift prosecution of their appeal.

What this practically means

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Executive summary

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By notice of motion dated 9th March 2015, the applicants sought stay of execution of the judgment of Ombwayo J. delivered on 4th February 2015 pending an intended appeal, contending that execution would cause them irreparable loss and render the appeal nugatory, that the application was made without delay, and that they were willing to provide security. The respondent opposed, arguing that mere filing of a notice of appeal showed no chances of success, that no steps to execute had been taken rendering the application premature, and that the applicants' developments on the suit property had been effected in disobedience of a court order. The court framed a single issue: whether the applicants had made a case for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. It held the application, filed barely one month after judgment, was not delayed, distinguishing Samson Kazungu Kalama where execution steps had preceded the application. On substantial loss, the court found that without a protective order nothing would stop the respondent from dealing prejudicially with the commercial structures erected by the applicants, who were in possession. The allegation of construction in violation of a court order failed for want of evidence, the alleged order not having been annexed. The application was allowed on condition that the applicants deposit Kshs. 500,000/= in an interest-bearing joint advocates' account within 30 days and file an undertaking within fourteen days to prosecute the appeal without unreasonable delay. Costs of the application were made costs in the appeal.

Key legal issues

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01

Whether the application was brought without unreasonable delay

Holding

There was no unreasonable delay; the application was filed about one month after judgment and no execution steps had been taken, distinguishing Kalama.

Reasoning

The judgment was delivered on 4th February 2015 and the application filed on 9th March 2015, barely one month later. Unlike the Samson Kazungu Kalama case, where applicants moved the court after execution steps had been taken, no such steps had been taken here. The court was therefore satisfied there was no unreasonable delay.

p. 2
02

Whether the applicants demonstrated substantial loss

Holding

Substantial loss established because, absent a protective order, the respondent could deal with the structures on the suit property prejudicially to the applicants before the appeal is determined.

Reasoning

Although there was no evidence of threats to demolish the structures, the court held that without an order protecting the structures nothing stops the respondent from dealing with them prejudicially to the applicants' interest. The applicants were in possession and had erected commercial premises; their destruction before the appeal would occasion substantial loss.

p. 3
03

Whether developments were erected in violation of a court order

Holding

No evidence proved the alleged violation; the alleged order was not annexed and none appears in the record, so this was not a ground to refuse stay.

Reasoning

The respondent contended that the developments were effected in disobedience of a court order. The court found the order allegedly violated was not annexed to the replying affidavit nor present in the record, so the allegation was unproven and could not bar the relief sought.

p. 3
04

Security for due performance of the decree

Holding

Stay granted on condition the applicants deposit Kshs. 500,000/= in an interest-bearing account within 30 days.

Reasoning

The applicants had intimated willingness to abide by any security order. The court, satisfied the conditions were met, allowed the application conditional on the deposit and on filing an undertaking to prosecute the appeal without unreasonable delay.

p. 3

Legal principles established

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  • No stay shall issue unless substantial loss, absence of unreasonable delay and security are demonstrated
  • Possession and developments on suit property can constitute substantial loss where interference before appeal is possible

Court orders

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  1. 1.Stay of execution of the judgment of Ombwayo J. delivered on 4th February 2015 pending the hearing and determination of the intended appeal
  2. 2.Applicants to deposit Kshs. 500,000/= in an interest-bearing account in the joint names of the advocates of the parties within 30 days
  3. 3.Applicants to file, within fourteen days, an undertaking to prosecute the appeal without unreasonable delay
  4. 4.Costs of the application to be costs in the appeal

Authorities

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Legislation

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

Cases cited (1)

  • Samson Kazungu Kalama vs. Robert Shume & 3 others
    Malindi ELC 144 of 2011 (2014) e KLR
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules

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, "George Muna & another v Salome Waruare [2015] KEELC 393 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/393/eng@2015-06-11

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