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ELCOtherNot stated in the excerpt (petition arising from judgment delivered 16th July, 2018; earlier suit Meru CMCC No. 262 of 2005: Kaimba Mangaara v County Council of Tharaka)· [2018] KEELC 1923 (KLR)

Kaimba Mangaara v Tharaka Nithi County Government [2018] KEELC 1923 (KLR)

High Court of Kenya
24 September 2018
PNP. M. Njoroge
1,553 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is an interim procedural ruling by P.M. Njoroge, J at the High Court, Chuka, on an application dated 30th July, 2018 by the County Government of Tharaka Nithi, the respondent in a petition in which judgment was delivered against it on 16th July, 2018 awarding the petitioner Kshs.5.5 million in damages, mesne profits from 1996 (to be assessed by a government valuer within three months), and declarations of rights infringement. The applicant, having filed a notice of appeal to the Court of Appeal, sought stay of execution pending the hearing of the application and of its intended appeal, invoking Order 42 Rule 6 and Order 51 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act, and Article 48 of the Constitution. It argued substantial loss and nugation of the appeal, cited authorities on the overriding objective, security for the decree and preservation of the status quo, and offered reasonable security. On 31st July, 2018 the court granted ex parte interim stay of prayer 3 until 24th September, 2018, citing the imminent six-week court recess, and directed service. When the matter came up inter partes, the plaintiff sought security of Kshs.5.5 million given the unassessed mesne profits. The court took a middle ground, ordered the applicant to deposit Kshs.4,500,000/= in an interest-earning account in the joint names of the parties' advocates, granted the plaintiff 14 days to respond to a further affidavit with open leave to reply before 5th October, 2018, and fixed the application for hearing and further directions on 9th October, 2018. No costs order was made; the substantive stay application remained pending.

Key legal issues

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Interim stay of execution to preserve the subject matter pending hearing of the stay application and intended appeal

Holding

The court granted a short interim stay ex parte on 31st July, 2018 due to the court recess, continued the matter inter partes, and conditioned continuation on the applicant depositing security of Kshs.4,500,000/= in an interest-earning account in the joint names of the parties' advocates

Reasoning

The applicant contended that execution of a decree of Kshs.5.5 million damages plus mesne profits would render the application and intended appeal nugatory. Counsel for the plaintiff sought Kshs.5.5 million as security since mesne profits were unassessed. The court took a middle ground of Kshs.4.5 million and allowed the plaintiff 14 days to respond to the further affidavit before further directions.

p. 3

Legal principles established

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  • The court has discretion to order security as a condition for maintaining an interim stay of execution pending the inter partes hearing of a stay application

Court orders

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  1. 1.Interim stay of execution of the judgment delivered on 16th July, 2018 granted on 31st July, 2018 until 24th September, 2018
  2. 2.The plaintiff is granted 14 days to respond to the respondent's further affidavit, with open leave to the parties to further respond, as and if necessary, before 5th October, 2018
  3. 3.The applicant is ordered to deposit as security a sum of Kshs.4,500,000/= in an interest earning account in the names of the parties' advocates
  4. 4.The application to be heard and/or given further directions on 9th October, 2018

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rules 1 to 3
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure ActSection 7 (explanation No. 4)
  • Constitution of KenyaArticle 48
  • Appellate Jurisdiction ActNot specified

Cases cited (6)

  • African Safari Club vs Safe Rentals Ltd
    Nairobi Civil Application No. Nai 53 of 2010
  • Southern Credit Banking Corporation Ltd vs Atlantic Products
    Milimani Commercial Courts Civil Case No. 922 of 2000
  • Assanand vs Pettit
    [1989] KLR 242
  • Reliance Bank Limited vs Norlake Investments Limited
    (2002) 1 EACA 227
  • Ndyanabo vs Attorney General
    (2001) 2 EACA 485
  • Kaimba Mangaara vs County Council of Tharaka
    Meru CMCC No. 262 of 2005
Jurisdiction invoked
Orders 42 Rule 6 and 51 Rules 1–3 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kaimba Mangaara v Tharaka Nithi County Government [2018] KEELC 1923 (KLR)", Case Analysis (2018). Not stated in the excerpt (petition arising from judgment delivered 16th July, 2018; earlier suit Meru CMCC No. 262 of 2005: Kaimba Mangaara v County Council of Tharaka). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1923/eng@2018-09-24

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