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ELCDismissed· [2016] KEELC 53 (KLR)

Annah Watetu Theuri v Eustace Maina Wachira [2016] KEELC 53 (KLR)

High Court of Kenya (per bench listing 'JUDGE')
2 November 2016
LWL. N. Waithaka
1,095 words in judgment
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The bottom line

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The Nyeri High Court refused to stop execution of a judgment because the appellant couldn't show she would suffer substantial loss, had offered no security, and had already been evicted.

What this practically means

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Executive summary

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The appellant, who had lived on suit property Nyeri/Municipality Block II/1146 for over 40 years and resided there with her three deaf daughters and grandson, moved the court by Notice of Motion dated 3rd June 2016 seeking stay of execution of the judgment in Civil Case No 346 of 2000 pending the hearing and determination of her appeal, with costs to abide the appeal's outcome. She argued the appeal had high chances of success, that eviction would render her family destitute, and that no warrants of attachment were served as required by Order 22 of the Civil Procedure Rules. She also contended that a judgment in Civil Appeal No. 88 of 2000 directing rehearing before another magistrate rendered the proceedings in Civil Case No 346 of 2000 a nullity. The respondent opposed, alleging inordinate delay, abuse of process, and that execution had already taken place. At the hearing only the appellant's counsel appeared. The court agreed with counsel that the respondent's Grounds of Opposition, filed over three and a half months after service and without leave, breached Order 51 of the CPR and expunged them from the record. Applying Order 42 Rule 6(2) and the principles in Butt v Rent Restriction Tribunal, the court held that although the motion was filed without unreasonable delay, counsel delayed filing the judgment and decree, no security was offered, and the appellant had already been evicted. Substantial loss, the epicentral consideration, could not be demonstrated. The application was dismissed with costs to the respondent, the court delivering its ruling at Nyeri on 2nd November 2016.

Key legal issues

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01

Whether the appellant satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010

Holding

The application failed: although filed without unreasonable delay, there was delay in filing the judgment and decree, no security was offered, and the appellant had already been evicted, so no substantial loss could arise from execution

Reasoning

The court applied Order 42 Rule 6(2) which requires substantial loss, absence of unreasonable delay, and security. It found the motion was filed promptly but counsel delayed in filing the judgment and decree. More importantly, no security was offered and the appellant had already been evicted from the suit property, meaning the hardship she feared could no longer be averted by a stay. Following Butt v Rent Restriction Tribunal and Sammy Some Kosgei v Grace Jelel Boit, the application was dismissed.

p. 2
02

Whether the respondent's Grounds of Opposition conformed with Order 51 of the Civil Procedure Rules

Holding

They did not; they were filed out of time (over three and a half months after service) and without leave, and were expunged from the record

Reasoning

Counsel for the applicant submitted that the Grounds of Opposition failed to conform to Order 51 of the CPR. The court agreed, noting they were filed out of time without leave of the court, and accordingly struck them out. However, their removal did not save the application, which was dismissed on its own merits under Order 42 Rule 6(2).

p. 2

Legal principles established

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  • Stay of execution pending appeal is a discretionary power exercised on settled principles: substantial loss, no unreasonable delay, and security for due performance of the decree
  • Substantial loss is the primary or epicentral consideration in an application for stay of execution pending appeal; without it, the application automatically fails

Court orders

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  1. 1.The Grounds of Opposition filed by the respondent are expunged from the court record for non-conformity with Order 51 of the Civil Procedure Rules
  2. 2.The Notice of Motion dated 3rd June, 2016 seeking stay of execution is dismissed

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Civil Procedure Rules, 2010Order 51
  • Civil Procedure Rules, 2010Order 22

Cases cited (2)

  • Butt v. Rent Restriction Tribunal
    (1982) KRL 419
  • Sammy Some Kosgei v. Grace Jelel Boit
    [2013] eKLR
On appeal from
Resident Magistrate's Court (Nyeri)
Civil Case No 346 of 2000
Jurisdiction invoked
Appellate jurisdiction over stay of execution pending appeal, under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010

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, "Annah Watetu Theuri v Eustace Maina Wachira [2016] KEELC 53 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/53/eng@2016-11-02

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