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ELCDismissedNot stated in judgment· [2016] KEELC 1253 (KLR)

Stephen Gichuhi Wachira & 3 others v Michael Muriuki Ngibuini [2016] KEELC 1253 (KLR)

High Court of Kenya
22 July 2016
MGMARY M. GITUMBI
1,581 words in judgment
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The bottom line

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Kenya's High Court dismissed a stay of execution because the applicants delayed 18 months, proved no real loss, and offered no security.

What this practically means

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Executive summary

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The Appellants/Applicants, who had lost consolidated suits (Nairobi CMCC Nos. 3651 and 3943 of 2009) over Plot Nos. 414, 415, 416, 445, 446 and 447 Umoja III Settlement Scheme, brought a Notice of Motion dated 5th November 2015 seeking to restrain the Respondent from trespassing on, constructing on, selling, transferring or alienating the suit plots pending appeal against the judgment of 15th April 2014, which had declared the Respondent the rightful owner. Though couched as an injunction application, the court treated it, with the parties' agreement reflected in their pleadings and submissions, as an application for stay of execution under Order 42 rule 6 of the Civil Procedure Rules, 2010. Applying the three conditions in Order 42 rule 6(2), the court found the Applicants had not demonstrated substantial loss: their claim that the Respondent intended to construct and dispose of the plots was contradicted by the Respondent's unchallenged sworn evidence that he had already completed development and was in occupation, with no intention to sell. The court further found inordinate delay of about one and a half years between filing the Memorandum of Appeal (14th May 2014) and the application (5th November 2015), during which the Respondent, reasonably assuming the appeal abandoned, developed the plots. Finally, no security for due performance of the decree was offered. Relying on Machira t/a Machira & Co vs. East African Standard No.2 (2002) 2 KLR 63 on the need to specify and prove substantial loss, the court dismissed the application with costs to the Respondent.

Key legal issues

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01

Substantial loss

Holding

Appellants failed to demonstrate substantial loss

Reasoning

The Respondent swore, unchallenged, that he had already completed development of the suit plots, was in possession, and had no intention to dispose of them. The Applicants' assertion that the Respondent was constructing and seeking buyers was therefore not established, and no substantial loss was shown.

p. 3
02

Unreasonable delay

Holding

The application was brought after inordinate delay

Reasoning

The Memorandum of Appeal was filed on 14th May 2014 but the application was not filed until 5th November 2015, about one and a half years later, with no explanation. During the delay the Respondent developed the plots, assuming the appeal was abandoned.

p. 3
03

Security

Holding

No security was offered as required

Reasoning

Order 42 rule 6(2)(b) requires the applicant to furnish security for due performance of the decree, but the Applicants indicated no security they would provide.

p. 3
04

Characterisation of the application

Holding

Though couched as an injunction, the application was treated as one for stay of execution pending appeal

Reasoning

Being at the appeal stage, and as both parties addressed it as a stay application in response and submissions, the court treated it accordingly.

p. 2

Legal principles established

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  • An applicant for stay who relies on substantial loss must specify the loss and satisfy the court that it will really ensue
  • Filing an appeal does not operate as an automatic stay of execution

Court orders

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  1. 1.The Notice of Motion dated 5th November 2015 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application to the Respondent
On appeal from
Chief Magistrate's Court, Milimani, Nairobi
CMCC No. 3651 of 2009 (consolidated with CMCC No. 3943 of 2009)
Jurisdiction invoked
Order 42 rules 6(1), 6(2) and 6(6) of the Civil Procedure Rules, 2010 (appellate jurisdiction over appeal from the magistrates' court)

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, "Stephen Gichuhi Wachira & 3 others v Michael Muriuki Ngibuini [2016] KEELC 1253 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1253/eng@2016-07-22

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