Trustees Chrisco Church Nakuru v Samwel Kibowen Towett & 4 others [2017] KEELC 223 (KLR)
The bottom line
#A Kenyan court can halt execution of its own judgment pending appeal, but the losing landholder must deposit rent-based security to stay in possession.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to entertain stay pending appeal after judgment
The trial court retains jurisdiction to hear an application for stay pending appeal; the functus officio objection is misplaced.
Order 42 Rule 6 expressly contemplates an application being made to the court appealed from, and where a party is aggrieved by a stay order made there, the remedy lies in the appellate court. The rule grants the court discretion to make such orders as it deems just, which is not confined to orders of a specified type and includes injunctive relief pending appeal.
Whether a Notice of Appeal suffices for a stay application
Yes - under Order 42 Rule 6(4), an appeal is deemed filed once notice of appeal is given.
Although a Notice of Appeal is not by itself an appeal, the rules deem an appeal to the Court of Appeal to have been filed upon giving of notice. It is therefore unnecessary that the substantive appeal be filed before an application for stay pending appeal is made.
Substantial loss and preservation of the subject matter
Substantial loss was demonstrated: the title could be further charged or sold, destroying the subject matter, and the applicant church would suffer loss of its worship site if successful on appeal.
Two issues stood out: preservation of the title and possession pending appeal. If the respondents entered further transactions over the charged title, third parties could be prejudiced and the appeal rendered nugatory. The court therefore barred dealings over the title and allowed the applicant to remain in possession on condition of security equivalent to two years' rent.
Security for due performance of the decree
Adequate security is an advance deposit of at least two years' quantified rent plus taxed costs, held in a joint interest-earning account.
Since there was no counterclaim for mesne profits, no evidence existed of the rental value. The court declined to speculate and referred quantification to the Nakuru District Government Valuer, to report within 14 days, after which the specific amount of security would be fixed and held jointly by counsel.
Effect of the finding that the applicant is a non-entity
The finding on capacity cannot be used to defeat the stay application because it is itself a subject of the intended appeal.
The court had held the plaintiff not to exist in law, but the applicant's Notice of Appeal challenges the whole judgment. Using that finding to defeat the application would presuppose the correctness of the very decision under appeal.
Legal principles established
#- A party may apply for stay pending appeal in the very court which made the judgment; the trial court is not functus officio for that purpose
- A court entertaining an application for stay pending appeal has discretion to grant an injunction pending appeal, distinct from an Order 40 injunction pending suit
- A Notice of Appeal is deemed an appeal for purposes of an application for stay pending appeal
- A court should not use its own findings to defeat an application for stay, since those findings are the very subject of the intended appeal
- The purpose of substantial loss is to ensure the subject matter is preserved and success on appeal is not rendered worthless
Court orders
#- 1.A stay of execution of the judgment of 20 September 2017 pending hearing and determination of the intended appeal, subject to conditions
- 2.An order that pending the appeal, or any further orders of this court or the appellate court, there be no further dealings in respect of the title Nakuru Municipality Block 8/36
- 3.The applicant to remain in possession of the premises but to deposit security in the form of money equivalent to at least two years' quantified rent, to be assessed by the Nakuru District Government Valuer within 14 days, held in a joint interest-earning account in the names of counsel for the applicant, the 2nd respondent and the 3rd respondent
- 4.The applicant to additionally deposit the taxed costs of the suit within 30 days of taxation, to be held in the same account for the duration of the appeal
- 5.Maintenance of the current status quo regarding construction on the premises until the appeal is heard and determined, subject to the deposit of security
- 6.Costs of the application to abide the outcome of the appeal
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal, in the court that made the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Trustees Chrisco Church Nakuru v Samwel Kibowen Towett & 4 others [2017] KEELC 223 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/223/eng@2017-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.