Nicholas Kigo Wambugu v Miriam Nyawira Mwaniki [2016] KEELC 424 (KLR)
The bottom line
#A Kenyan court refused to pause a tribunal's eviction order, confirming you cannot appeal a settlement you agreed to—only ask the same body to set it aside.
What this practically means
#Executive summary
#Key legal issues
#Conditions for grant of stay of execution pending appeal
The applicant failed to demonstrate substantial loss and did not furnish security, so the stay could not be granted
The court relied on Order 42 Rule 6(2) and a line of authorities holding that substantial loss is the cornerstone of stay applications. The applicant did not controvert the respondent's averment that he has another place within Nyeri Town where he can relocate, and made no offer of security for due performance of the decree. Absent these, the discretion could not be exercised in his favour.
Whether a consent order may be stayed or challenged on appeal
Consent orders are not appealable; the proper remedy is an application for review or setting aside before the court that made the orders
Relying on Section 67(2) of the Civil Procedure Act and Uasin Gishu Weekly Advertiser Ltd v Abdul Aziz Kanji, the court held that a consent judgment is not appellable and can only be set aside on grounds which would necessitate setting aside a contract, such as fraud or collusion, or reviewed before the court which made the orders. The stay application aimed at the consent orders was therefore misplaced.
Whether a defect in citing wrong provisions of the law is fatal
Such a defect is curable under Article 159 of the Constitution
This was counsel's submission for the applicant in response to the respondent's contention that the application was fatally defective for citing the wrong provisions. The court did not expressly rule on this point, instead disposing of the application on substantial loss and consent-order grounds.
Legal principles established
#- No order for stay of execution shall be made unless substantial loss, absence of unreasonable delay and security are demonstrated
- A consent decree is not appealable and can only be set aside or reviewed by the court which made it on grounds such as fraud, collusion or other grounds for setting aside a contract
- Substantial loss is the epicentre of an application for stay of execution pending appeal
Court orders
#- 1.The application is dismissed insofar as it seeks stay of execution of the consent orders issued in Meru BPRT Case No. 84 of 2014
- 2.The application is allowed in terms of prayer 2, directing the BPRT to forward the original file in respect of Meru BPRT Case No. 84 of 2014 to the court
- 3.The respondent is awarded the costs of the application
- On appeal from
- Business Premises Rent Tribunal, Meru
- BPRT Case No. 84 of 2014
- Jurisdiction invoked
- Appeal from the Business Premises Rent Tribunal; application brought under Order 42 Rule 6(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicholas Kigo Wambugu v Miriam Nyawira Mwaniki [2016] KEELC 424 (KLR)", Case Analysis (2016). Business Premises Rent Tribunal Meru (BPRT) Case No. 84 of 2014 (appeal therein); notice of motion dated 2nd March, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/424/eng@2016-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.