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ELCDismissedNot stated in the extract· [2018] KEELC 938 (KLR)

Chelagat Nases Njakai v Teleposta Pension Scheme & 4 others [2018] KEELC 938 (KLR)

Environment and Land Court
25 September 2018
345 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause an eviction order because the applicant showed no substantial loss and offered no security.

What this practically means

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Executive summary

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Before the Environment and Land Court at Nairobi was an application dated 9/11/2017 by the 2nd Defendant seeking stay of execution of the judgment and decree delivered on 11/10/2017 pending her appeal to the Court of Appeal. She contended that eviction orders had issued against her, that she had an arguable appeal with high chances of success, and that having been in possession of the suit property for close to 30 years, the appeal would be rendered nugatory if execution proceeded. The Plaintiff opposed the application on three grounds: that there was no valid Notice of Appeal since the purported notice was lodged on 8/11/2017 yet judgment was delivered on 10/10/2017; that the applicant had not followed the procedure in Order 9 of the Civil Procedure Rules on change of advocates after judgment; and that the applicant had failed to furnish security for the due performance of the decree. The court reaffirmed that the Plaintiff was entitled to specific performance of the agreement dated 27/9/2007 and mesne profits of Kshs. 15,000 per month from 1/11/2007 until vacant possession is given up. It was not satisfied that substantial loss would result to the 2nd Defendant absent a stay, and noted the failure to furnish security. The application was dismissed with costs to the Plaintiff. Judgment was dated and delivered at Nairobi on 25th September 2018 by K. Bor, Judge.

Key legal issues

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01

Whether substantial loss justifying stay of execution was demonstrated

Holding

The court was not satisfied that substantial loss would result to the 2nd Defendant if stay was not granted, notwithstanding her long possession of the suit property and pending appeal.

Reasoning

The 2nd Defendant argued she had been in possession of the suit property for close to 30 years and that the appeal would be nugatory if eviction proceeded. The court nonetheless found that the threshold of substantial loss was not met, and separately found that no security had been furnished, which is an essential condition for granting a stay of execution pending appeal.

p. 2
02

Whether the applicant furnished security for the due performance of the decree

Holding

The applicant failed to furnish security for the due performance of the decree, which weighed against granting the stay.

Reasoning

The Plaintiff opposed the application on the ground that no security for due performance of the decree had been offered. The court adopted this failure as a dispositive consideration, holding that the applicant had failed to furnish security for the due performance of the decree or order that may ultimately be binding on her, and therefore dismissed the application with costs.

p. 2
03

Whether the judgment of 11/10/2017 correctly granted specific performance and mesne profits

Holding

The court reaffirmed that the Plaintiff was entitled to specific performance of the agreement dated 27/9/2007 and mesne profits of Kshs. 15,000 per month from 1/11/2007 until vacant possession is given.

Reasoning

In restating the effect of the judgment under appeal, the court confirmed its earlier finding that the Plaintiff was entitled to specific performance of the agreement dated 27/9/2007 and to mesne profits at Kshs. 15,000 per month from 1/11/2007 until the Plaintiff is given vacant possession by the 2nd Defendant.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate substantial loss and furnish security for the due performance of the decree

Court orders

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  1. 1.The application dated 9/11/2017 seeking stay of execution of the judgment and decree delivered on 11/10/2017 pending appeal is dismissed
  2. 2.Costs of the application awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 (procedure on change of advocates after judgment)
Jurisdiction invoked
Inherent jurisdiction of the court under the Civil Procedure Act and Order 42 of the Civil Procedure Rules to stay execution of its own judgment pending appeal (not expressly cited in the extract)

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, "Chelagat Nases Njakai v Teleposta Pension Scheme & 4 others [2018] KEELC 938 (KLR)", Case Analysis (2018). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/938/eng@2018-09-25

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