Alice Muhonja Kirambi v Redempta Susan Chetambe & another [2018] KEELC 751 (KLR)
The bottom line
#A Kitale court refused to pause execution of a land judgment because the losing party showed no real loss and offered vague security.
What this practically means
#Executive summary
#Key legal issues
#Whether a valid appeal was in place to anchor the stay application
A notice of appeal was filed within time on 28/6/18, but the court declined to pronounce on its validity, holding that validity of a notice of appeal is a preserve of the Court of Appeal; the ground of opposition premised on non-service therefore failed
The court noted the notice of appeal was filed within the time prescribed by rule 75(2) of the Court of Appeal Rules. Although the respondent contended no notice was served, the court, relying on Samwel Kimutai Korir and David Simiyu Wanyonyi, held it lacked jurisdiction to determine the notice's validity, so that ground of opposition failed. However, no record of appeal or request for certified copies was exhibited and the rule 82 period had expired.
Whether substantial loss would result if stay was not granted
No substantial loss demonstrated: the land had been in the plaintiff's hands for a long time and there was no evidence of likelihood of disposal
The court examined whether the defendant would suffer irreparable loss absent stay. It found the suit concerned land which had long been in the plaintiff's possession, and no evidence was presented of any likelihood of disposal by the plaintiff. In those circumstances the defendant failed to demonstrate that substantial or irreparable loss would ensue, defeating the first limb of Order 42 rule 6(2).
Whether adequate security was offered
No security was offered; the title deed tendered was unidentified and its value could not be ascertained
The applicant offered another title deed as security but without giving its relevant details. The court could not decipher the value of the security, whether it existed, or whether it was fit for the occasion, and therefore found that no security had been offered, failing the second limb of Order 42 rule 6(2).
Legal principles established
#- An applicant for stay of execution must satisfy the conditions in Order 42 rule 6(2): substantial loss, no unreasonable delay, and security
- The validity of a Notice of Appeal is a matter reserved for the Court of Appeal, not the superior court of first instance
- An applicant for stay must demonstrate substantial loss; in land matters, absence of evidence of likely disposal of the land means irreparable loss is not shown
Court orders
#- 1.The application dated 16/8/2018 is dismissed with costs
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alice Muhonja Kirambi v Redempta Susan Chetambe & another [2018] KEELC 751 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/751/eng@2018-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.