George Muna & another v Salome Waruare [2015] KEELC 393 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the application was brought without unreasonable delay
There was no unreasonable delay; the application was filed about one month after judgment and no execution steps had been taken, distinguishing Kalama.
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.
Whether the applicants demonstrated substantial loss
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.
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.
Whether developments were erected in violation of a court order
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.
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.
Security for due performance of the decree
Stay granted on condition the applicants deposit Kshs. 500,000/= in an interest-bearing account within 30 days.
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.
Legal principles established
#- 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
#- 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.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.Applicants to file, within fourteen days, an undertaking to prosecute the appeal without unreasonable delay
- 4.Costs of the application to be costs in the appeal
- Jurisdiction invoked
- Order 42 Rule 6(1) and (2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.