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ELCAllowedNot stated in judgment· [2017] KEELC 1501 (KLR)

Eldoret Express Company Limited v Tawai Limited & another [2017] KEELC 1501 (KLR)

High Court of Kenya
2 October 2017
AOA. Ombwayo
879 words in judgment
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The bottom line

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The High Court in Eldoret paused a land eviction for seven months because the company filed quickly, showed real loss, and offered a bus as security.

What this practically means

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Executive summary

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Eldoret Express Company Limited, the judgment debtor, applied to the High Court in Eldoret for a stay of execution of a decree dated 16th August 2017 and issued on 18th August 2017, pending an intended appeal to the Court of Appeal against a land judgment in favour of Tawai Limited, the decree holder. The application was supported by the affidavit of Simon Mbugua Thungu, the company's director, who deponed that the suit land comprised about 640 acres which he had occupied since 2001, on which he kept cows and had developed structures, and that eviction pending appeal would cause substantial loss and render the appeal nugatory. He asserted the application was filed promptly and that security would be offered. The decree holder opposed, contending that no security had been offered, no substantial loss demonstrated, and that the intended appeal was a delay tactic perpetuating illegal occupation and fraud uncovered by the court. Ruling on 2nd October 2017, A. Ombwayo J found that the application filed on 19th August 2017 was brought without delay, that the applicant would suffer substantial loss if evicted and thereafter succeeded on appeal, and that the applicant had offered security of a bus valued at Kshs.14,000,000. The court held the Order 42 Rule 6(2) test satisfied, granted a stay of execution for seven months subject to review, ordered deposit of a log book of motor vehicle KCL 072U with a valuation report within seven days, and prohibited the Director Transport and Safety Authority from dealing with the security. No costs order was recorded.

Key legal issues

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Whether the conditions in Order 42 Rule 6(2) for stay of execution pending appeal were satisfied

Holding

Stay granted: the application was filed promptly (judgment 16.8.2017, application 19.8.2017), substantial loss was shown (eviction from 640 acres with developments and stock would render the appeal nugatory), and security by way of a bus log book was offered.

Reasoning

The court found no delay since the application was lodged three days after judgment. Substantial loss was established because eviction from the 640-acre parcel, on which the applicant had built and reared cows since about 2000, would make any successful appeal nugatory. The applicant offered security of a bus valued at Kshs.14,000,000, satisfying the third limb of Order 42 Rule 6(2).

p. 3

Legal principles established

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  • An applicant for stay of execution under Order 42 Rule 6(2) must show no unreasonable delay, substantial loss, and security for due performance of the decree.

Court orders

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  1. 1.Stay of execution of the decree dated 16th August 2017 and issued on 18th August 2017 granted for a period of 7 months, subject to review, pending hearing and determination of the appeal
  2. 2.Applicant to deposit in court security in the form of a log book of motor vehicle registration number KCL 072U, a brand-new Scania bus registered in the name of Eldoret Express Ltd or its director, together with the valuation report, within 7 days, failing which execution to issue
  3. 3.Director Transport and Safety Authority prohibited from dealing with the said security in any manner whatsoever

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42, Rule 6(2)
On appeal from
High Court of Kenya, Eldoret (original suit)
Not stated in judgment
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010

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, "Eldoret Express Company Limited v Tawai Limited & another [2017] KEELC 1501 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1501/eng@2017-10-02

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