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ELCDismissedNotice of motion dated 1st September, 2015· [2016] KEELC 1160 (KLR)

Amos Muriithi Kariamatu v Margaret Wambui Wamugunda & John Wachira Wamugunda (Civil Case 55 of 2013) [2016] KEELC 1160 (KLR)

Environment and Land Court
2 February 2016
1,470 words in judgment
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The bottom line

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A Kenyan court refused to pause execution of a land judgment because the applicant delayed four months, proved no real loss, and offered no security.

What this practically means

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Executive summary

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The applicant, Amos Muriithi Kariamatu, moved the Environment and Land Court at Nyeri by notice of motion dated 1st September, 2015 seeking stay of execution of a decree issued on 21st May, 2015 pending an intended appeal. He argued that he had filed an appeal, that execution had begun, that the application was brought without inordinate delay, and that refusal would render the appeal nugatory and cause him substantial loss. The 2nd respondent, John Wachira Wamugunda, opposed, contending that a similar application had earlier been filed (and, per the applicant, withdrawn), that there had been undue delay, that no record of appeal had been filed, and that the applicant retained a portion of land unaffected by execution so would suffer no prejudice. The court framed the application against Order 42 Rule 6(2) of the Civil Procedure Rules and authorities, notably Sammy Some Kosgei v. Grace Jelel Boit, establishing substantial loss as the epicenter of a stay application. On the facts, the court found the four-month delay in filing unexplained and inordinate; the applicant had not expressed willingness to furnish security; and he had merely alleged irreparable loss without evidencing it, the fact that land was concerned not itself establishing substantial loss. The application was dismissed with costs to the plaintiff/respondent.

Key legal issues

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01

Conditions for granting stay of execution pending appeal under Order 42 Rule 6(2)

Holding

All three conditions - substantial loss, no unreasonable delay, and security - must be satisfied; the applicant satisfied none and the application was dismissed

Reasoning

The court applied Order 42 Rule 6(2) and case law holding substantial loss to be the epicenter of a stay application. The application was filed about four months after the decree with no explanation, amounting to inordinate delay. The applicant did not express willingness to furnish security, and merely alleged irreparable loss without evidencing it. All three conditions failed, warranting dismissal with costs.

p. 3
02

Inordinate delay in bringing the application

Holding

A delay of about four months without explanation constitutes inordinate delay

Reasoning

The application dated 1st September 2015 followed a decree issued 21st May 2015, approximately four months later. Apart from admitting a withdrawn earlier application, the applicant gave no explanation for the wait. The court accepted the respondent's submission that this was inordinate delay, defeating one statutory condition for stay.

p. 3
03

Proof of substantial loss

Holding

Substantial loss must be demonstrated by evidence; mere allegation that the applicant stands to lose irreparably is insufficient

Reasoning

Relying on Sammy Some Kosgei v. Grace Jelel Boit and related authorities, the court held that substantial loss is the cornerstone of a stay application. The applicant merely stated he stands to lose irreparably without demonstrating what loss he would suffer. The mere fact that the subject matter is land does not make any loss substantial.

p. 3
04

Offer of security

Holding

The applicant's failure to express willingness to furnish security weighed against the grant of stay

Reasoning

Order 42 Rule 6(2) requires the applicant to furnish such security as the court orders for due performance of the decree. On the application before it, the court observed that the applicant had not expressed willingness to furnish security for due performance of such decree as may ultimately issue against him, failing another mandatory condition.

p. 3

Legal principles established

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  • An applicant for stay must, by evidence, demonstrate substantial loss; mere allegation, or the fact that the subject matter is land, is not proof of substantial loss

Court orders

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  1. 1.The application for stay pending appeal fails and is dismissed with costs to the plaintiff/respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (5)

  • Sammy Some Kosgei v. Grace Jelel Boit
    (2013) eKLR
  • Daniel Kihara Murage v. Jacinta Karuana Nyangi & Another
    (2015) eKLR
  • Everlyn Jebitok Keter v. Henry Kiplagat Muge & 2 Others
    (2011) eKLR
  • Robert Ngaruiya Chutha vs. Joseph Chege Ndungu
    (2014) eKLR
  • Charles Wahome Gethi v. Angela Wairimu Gethi
    Civil Application No.302 of 2007 (2008) eKLR
Jurisdiction invoked
Order 42 Rule 6(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, "Amos Muriithi Kariamatu v Margaret Wambui Wamugunda & John Wachira Wamugunda (Civil Case 55 of 2013) [2016] KEELC 1160 (KLR)", Case Analysis (2016). Notice of motion dated 1st September, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1160/eng@2016-02-02

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