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ELCDismissedNot stated in judgment (Notice of Motion dated 19th September 2017)· [2017] KEELC 891 (KLR)

Maria Rosita Cardozo v Robert Kibagendi Otachi & another [2017] KEELC 891 (KLR)

Environment and Land Court
27 November 2017
EOE. O. OBAGA
873 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The first Defendant/Applicant moved the court by Notice of Motion dated 19th September 2017 seeking stay of execution pending appeal of a judgment delivered on 31st August 2017 in favour of the Plaintiff/Respondent concerning LR No. Nairobi/Block 90/235. The applicant argued that execution, particularly sale or charging of the property, would render his appeal nugatory, having filed a Notice of Appeal. The Respondent opposed, contending that the threshold in Order 42 Rule 6(2) had not been met, that the applicant neither occupied nor had developed the suit property (living instead on adjacent land), and that a valuation report put the property at over Kshs.40,000,000, which should be deposited as security if stay were granted. The court, E. O. Obaga J, restated the three conditions in Order 42 Rule 6(2): substantial loss, absence of unreasonable delay, and security. On delay, the application filed 19 days after judgment was found to be timeous. On substantial loss - described as the cornerstone, applying Kenya Shell Ltd v Benjamin Karuga Kibiru - the court noted the uncontroverted evidence that the property is undeveloped and unoccupied by the applicant, and that any cancellation of his title could be reversed should he succeed on appeal. There was also no evidence of any attempt by the plaintiff to dispose of the property. Consequently no substantial loss was demonstrated, security did not arise, and the application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether substantial loss was demonstrated

Holding

No substantial loss was demonstrated because the suit property is undeveloped, unoccupied by the applicant, and any cancellation of title can be reversed if he succeeds on appeal

Reasoning

The court considered the background: the applicant holds a title of 1997 which the court in the main suit found invalid and ordered cancelled. The property has no developments and the applicant lives on an adjacent property. If he ultimately succeeds on appeal, the cancellation would be reversed, so no loss would be occasioned by refusing stay.

p. 2
02

Whether there was unreasonable delay in filing the application

Holding

There was no delay; the application filed on 19th September 2017 came 19 days after the judgment delivered on 31st August 2017

Reasoning

The court computed the interval between delivery of judgment and filing of the application and found 19 days, concluding this did not amount to unreasonable delay under Order 42 Rule 6(2).

p. 2
03

Whether security should be ordered

Holding

Security is only considered where substantial loss is demonstrated; since none was shown, the question did not arise

Reasoning

The court held that security under Order 42 Rule 6(2) is considered only if the court finds the applicant likely to suffer substantial loss. Having found no such likelihood, the respondent's demand for a deposit of Kshs.40,000,000 based on a valuation report did not fall for determination.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone for consideration of whether or not to grant stay of execution pending appeal; without evidence of substantial loss, it is rare that an appeal would be rendered nugatory by some other event

Court orders

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  1. 1.The Notice of Motion dated 19th September 2017 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (1)

  • Kenya Shell Ltd Vs Benjamin Karuga Kibiru and another
    (1986) eKLR
Jurisdiction invoked
Order 42 Rule 6(2) 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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Cite this brief

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Cite this brief

Caselaw, "Maria Rosita Cardozo v Robert Kibagendi Otachi & another [2017] KEELC 891 (KLR)", Case Analysis (2017). Not stated in judgment (Notice of Motion dated 19th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/891/eng@2017-11-27

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