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ELCDismissedNot stated in the judgment· [2018] KEELC 1160 (KLR)

David Nganga & 6 others v Philes Syombua Mulwa & 21 others [2018] KEELC 1160 (KLR)

High Court of Kenya
19 October 2018
OAO.A. Angote
679 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court refused to pause a Magistrate's ruling because the applicants couldn't show what real harm they would suffer if it took effect.

What this practically means

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Executive summary

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This was a ruling on an application by the Applicants (Appellants) seeking a stay of execution of an order issued by Honourable J.N. Nyagah, CM, and consequential proceedings pending the hearing and determination of their appeal. The underlying dispute arose from a suit filed by the Applicants in their capacity as L.C.C officials of A.I.C Mathunthini, which proceeded ex-parte and resulted in a decree issued on 8th December, 2014. Following eviction of the Respondents, an application dated 18th December, 2014 was filed in the lower court, and the Magistrate set aside the ex-parte judgment. The Applicants contended that the Magistrate acted contrary to the prayers sought, that the Respondents had abandoned several prayers in that application, and that they risked the Respondents re-entering the suit premises, affecting their right of worship. The Respondents, through Rev. Joshua Kiiti, countered that the deponent lacked locus standi, that the Applicants had misled the court, and that the appeal had limited chances of success. The court identified Order 42 Rule 6 of the Civil Procedure Rules as the governing law and restated the three conditions for stay: substantial loss, absence of unreasonable delay, and security for due performance of the decree. It held that the Applicants failed to demonstrate any substantial loss, since the impugned order merely set aside the ex-parte judgment and directed no action against them. The court also deprecated the Applicants' annexation of a photocopied handwritten ruling instead of a typed one. The application was dismissed with costs.

Key legal issues

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Substantial loss as the cornerstone of an application for stay of execution pending appeal

Holding

The Application failed because no substantial loss was demonstrated; an order that merely restores the status quo by setting aside an ex-parte judgment does not occasion substantial loss

Reasoning

The court applied the tripartite test under Order 42 Rule 6 of the Civil Procedure Rules. Although the Applicants argued at length that the Magistrate erred in setting aside the ex-parte judgment, they never identified the substantial loss they would suffer. The order sought to be stayed merely set aside the ex-parte orders previously granted in their favour and directed no action against them. The court also faulted the Applicants for annexing a photocopied handwritten Ruling rather than a typed one.

p. 2

Legal principles established

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  • For a stay of execution under Order 42 Rule 6 to be granted, the applicant must show substantial loss, that the application was made without unreasonable delay, and security for the due performance of the decree

Court orders

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  1. 1.Dismissal of the Application dated 13th April, 2015
  2. 2.Costs of the Application to the Respondents
On appeal from
Magistrates' Court (order of Honourable J.N. Nyagah, CM)
Not stated in the judgment
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "David Nganga & 6 others v Philes Syombua Mulwa & 21 others [2018] KEELC 1160 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1160/eng@2018-10-19

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