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ELCDismissed· [2017] KEELC 734 (KLR)

Wachu Ranch (D.A.) Company Limited v Alex Mwalimu Baya & 549 others [2017] KEELC 734 (KLR)

Environment and Land Court (implied)
7 December 2017
JOJ.O. Olola
1,394 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause execution of a judgment because the applicants showed no concrete evidence they would suffer real loss.

What this practically means

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Executive summary

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Wachu Ranch (D.A) Company Limited, claiming to be the registered owner of LR No. 13600 in Tana River County allocated for ranching in 1976, sued 550 defendants for injunctions, demolition of structures and eviction for encroachment. On 25th November 2016 Angote J allowed the suit and granted substantially all orders sought. The defendants, through Bakari Ngeneza Mwamugunda, filed a Notice of Appeal on 8th December 2016 and then moved the court on 24th January 2017 for stay of execution pending the intended appeal. The plaintiff opposed, arguing the deponent lacked authority, the application was inordinately delayed, the Notice of Appeal was deemed withdrawn under Rule 83 of the Court of Appeal Rules, and the prerequisites for stay were unmet. Olola J found no inordinate delay, attributing the two-month interval to the December holidays, court vacation and counsel's absence abroad. However, on the decisive question of substantial loss, the court found the supporting affidavit sketchy, containing only bare assertions that execution was imminent and that the appeal would be rendered nugatory. Citing Order 42 Rule 6 of the Civil Procedure Rules and the authorities of Ringera J in Global Tours, Gikonyo J in Antoine Ndiaye, Kenya Shell and Machira, the court held that an applicant must prove specific, tangible loss. No such evidence was adduced. The application dated 24th January 2017 was accordingly dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the two-month delay in filing the application amounted to inordinate delay

Holding

It did not; the December holidays, court vacation and counsel's absence abroad explained the delay

Reasoning

The court weighed the date of judgment (25th November 2016), the timely Notice of Appeal (8th December 2016) and the peculiarities of December legal practice, including office closures and court vacation, and accepted counsel's explanation that he was out of the country when judgment was delivered.

p. 2
02

Whether the applicants demonstrated substantial loss to warrant stay of execution

Holding

They did not; the affidavit was sketchy and no evidence of specific or tangible loss was adduced

Reasoning

Relying on Order 42 Rule 6 and the authorities of Gikonyo J, Kenya Shell and Machira, the court held that an applicant must prove specific details and particulars of loss; mere assertion that execution is imminent and the appeal would be rendered nugatory is insufficient.

p. 3

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution; an applicant must prove specific and tangible loss, not merely assert it

Court orders

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  1. 1.The application dated 24th January 2017 seeking stay of execution is dismissed
  2. 2.Costs of the application awarded to the Respondent (Plaintiff)

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 41 Rule 4
  • Court of Appeal RulesRule 83

Cases cited (4)

  • In the Matter of Global Tours and Travels Limited, Nairobi High Court Winding Up Cause No. 43 of 2000
    Unreported
  • Antoine Ndiaye –vs– African Virtual University
    (2015) eKLR
  • Kenya Shell Limited –vs– Benjamin Karuga Kigibu and Ruth Wairimu Karuga
    (1982-1988)
  • Machira t/a Machira & Company Advocates –vs– East African Standard (No. 2)
    (2002) KLR 63
On appeal from
High Court / Environment and Land Court (Angote J)
Not stated
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wachu Ranch (D.A.) Company Limited v Alex Mwalimu Baya & 549 others [2017] KEELC 734 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/734/eng@2017-12-07

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