Gatatha Farmers Co. Ltd v Otieno Okiro & another [2018] KEELC 1258 (KLR)
The bottom line
#A Kitale court refused to pause execution of a land judgment because the applicant delayed 62 days, proved no loss, and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was brought without undue delay
The delay of 62 days from judgment to application was inordinate and unexplained.
Judgment was delivered on 30/5/2018 and the application filed on 3/8/2018, a 62-day gap. Although a notice of appeal was filed on 5/6/2018, the supporting affidavit offered no explanation for the delay in presenting the stay application. The court thus found the delay inordinate on this first condition.
Whether substantial loss may result to the applicant
No substantial loss was proved; the applicant's affidavit was bare of details of any loss.
Applying the Kenya Shell v Kibiru principle that substantial loss is the cornerstone for granting stay, the court examined the applicant's affidavit and found it devoid of any particulars of loss. Absent evidence of substantial loss, the court had nothing to consider and the ground failed.
Whether security for due performance of the decree had been given
No offer of security of any kind was made; the ground failed.
Order 42 rule 6(2)(b) requires the applicant to furnish security. The applicant merely asserted that the appeal would be rendered nugatory without offering any security. The court therefore had nothing before it to consider on this third condition, and dismissal followed.
Legal principles established
#- Substantial loss is the cornerstone for granting a stay of execution; without evidence of substantial loss, an application for stay must fail.
- An applicant for stay must satisfy the conditions of no undue delay, substantial loss and security for due performance of the decree.
Court orders
#- 1.Dismissal of the application dated 3/8/2018
- 2.Costs of the application to the respondents
- Jurisdiction invoked
- Section 3 & 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatatha Farmers Co. Ltd v Otieno Okiro & another [2018] KEELC 1258 (KLR)", Case Analysis (2018). ELC Suit (application dated 3/8/2018; related to Court of Appeal No. ELD 27/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1258/eng@2018-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.