Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedMombasa CMCC No. 3443 of 2013 (Appeal from ruling of 7th February 2017 in objection proceedings)· [2017] KEELC 1145 (KLR)

Loice Khachendi Onyango v Alex Inyangu & another [2017] KEELC 1145 (KLR)

High Court of Kenya (Environment and Land/appeal from subordinate court; delivered at Mombasa)
7 November 2017
CYC. Yano
1,632 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The High Court in Mombasa dismissed a bid to halt execution because the appellant proved no specific loss and refused to deposit the money as security.

What this practically means

#

Executive summary

#
This is a ruling by C. Yano, J at Mombasa on a Notice of Motion dated 22nd February 2017 brought by the Appellant, Loice Kachendi Onyango, under Order 42 Rule 6 and Order 51 Rule 2 of the Civil Procedure Rules, seeking stay of execution of a decree in Mombasa CMCC No. 3443 of 2013 and of the order of 7th February 2017 pending appeal. The appeal challenged the dismissal by the learned Trial Magistrate (Hon. Nyakweba) of the Appellant's objection to attachment of TITLE NO. KILIFI/MTONDIA/318, registered in the name of the 2nd Respondent but claimed by the Appellant as family trust property. The trial court had granted a 30-day stay on condition that the Appellant deposit the decretal sum in a joint interest-earning account in the names of the parties' advocates; she did not comply. The 1st Respondent, Fred Adhoch, opposed the application as an abuse of process aimed at stifling execution. The court set out the three prerequisites under Order 42 Rule 6: absence of undue delay, substantial loss, and security. It found the application timeously filed but held that the Appellant made only a bare assertion of substantial loss without particulars, and had neither complied with the deposit condition nor offered alternative security nor sought an extension of time. Her contention that the deposit condition contravened Article 50 and amounted to deprivation of property was rejected on the basis that stay is always granted on terms of security. The application was dismissed with costs to the 1st Respondent.

Key legal issues

#
01

Whether the Appellant satisfied the prerequisites for stay of execution pending appeal under Order 42 Rule 6

Holding

The Application was timeously made, but the Appellant failed to demonstrate substantial loss and failed to provide security, having not complied with the condition imposed by the trial court nor offered alternative security

Reasoning

The court accepted that the application was made timeously, since the application of 22nd February 2017 followed immediately on the ruling of 7th February 2017. However, on substantial loss, the Appellant made only a bare assertion without specific particulars. On security, she failed to deposit the decretal amount as directed by the trial magistrate, offered no alternative security, and did not seek extension of time to make the deposit. The stay conditions imposed by the trial court did not amount to unlawful deprivation of property.

p. 3
02

Whether the condition to deposit the decretal amount in a joint account, in a suit to which the Appellant is not a party, contravened Article 50 and amounted to deprivation of property without a hearing

Holding

No; stay is always granted on terms of security, and the trial magistrate's condition was a lawful exercise of that power

Reasoning

The court held that the Appellant's contention ignored that security is an inherent precondition of stay. The learned Trial Magistrate had granted a 30-day stay on condition that the decretal amount be deposited in a joint interest-earning account in the names of the parties' advocates. The Appellant did not comply, did not offer alternative security, and did not seek more time, so the condition could not be characterized as unconstitutional deprivation.

p. 3

Legal principles established

#
  • Stay of execution pending appeal is discretionary but must be exercised judiciously upon the three prerequisites in Order 42 Rule 6: no undue delay, substantial loss, and security
  • A bare statement that substantial loss will be suffered is insufficient; the applicant must prove specific details and particulars of the loss
  • Even where stay is granted, it must be on terms in the form of security for the due performance of the decree

Court orders

#
  1. 1.The Notice of Motion dated 22nd February 2017 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the Application to the 1st Respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 51 Rule 2
  • Constitution of KenyaArticle 50

Cases cited (3)

  • Kenya Shell Limited –vs- Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) KAR 1018
  • Machira T/A Machira & Co Advocates –vs- East African Standard (No.2)
    (2002) KLR 63
  • Absalom Dora –v- Turbo Transporters
    (2013) eKLR
On appeal from
Magistrates' Court at Mombasa
Mombasa CMCC No.3443 of 2013
Jurisdiction invoked
Order 42 Rule 6 and Order 51 Rule 2 of the Civil Procedure Rules, in an appeal against the ruling of the subordinate court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (19)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Loice Khachendi Onyango v Alex Inyangu & another [2017] KEELC 1145 (KLR)", Case Analysis (2017). Mombasa CMCC No. 3443 of 2013 (Appeal from ruling of 7th February 2017 in objection proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1145/eng@2017-11-07

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