Reuben Ng’ang’a Wambura v Daniel Kiarie Kibathi [2018] KEELC 224 (KLR)
The bottom line
#A Kenyan court paused an eviction for 12 months pending appeal, but only because the occupier agreed to pay Kshs. 25,000 monthly — miss one payment and eviction proceeds automatically.
What this practically means
#Executive summary
#Key legal issues
#Conditions for grant of stay of execution pending appeal under Order 42 Rule 6
The court is barred from granting stay unless satisfied that the applicant would suffer substantial loss, the application was made without unreasonable delay, and security is furnished for due performance of the decree. All three conditions were met.
Order 42 Rule 6(2) sets out the conditions for stay: substantial loss, absence of unreasonable delay, and security for due performance of the decree. The decree was for possession of the property occupied by the defendant, so eviction before appeal would amount to substantial loss. The application was filed promptly and security was offered, though the amount offered was raised by the court.
Legal principles established
#- The purpose of security under Order 42 rule 6 is to guarantee due performance of the decree, not to punish the judgment debtor
Court orders
#- 1.Stay of the judgment delivered on 11th May, 2018 and the decree issued on 31st May, 2018 for twelve (12) months or pending the hearing and determination of the intended appeal to the Court of Appeal, whichever comes earlier
- 2.Stay conditional on the defendant depositing Kshs.25,000/- per month in an interest earning joint bank account in the names of the advocates for the parties, with effect from 10th December, 2018 and on the 10th of each succeeding month
- 3.Automatic discharge of the stay upon default of any one monthly instalment, with liberty for the plaintiff to execute the decree and the Deputy Registrar to issue warrants for forceful eviction without further reference to the court
- 4.Each party to bear his own costs of the application
- Jurisdiction invoked
- Order 42 Rule 6(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Reuben Ng’ang’a Wambura v Daniel Kiarie Kibathi [2018] KEELC 224 (KLR)", Case Analysis (2018). Not stated ( suit filed 11th October, 2006; Notice of Motion dated 10th July, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/224/eng@2018-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.