Michael Waweru & another v Grace Nyokabi Kinuthia [2018] KEELC 2188 (KLR)
The bottom line
#A Kenyan court stopped an eviction pending appeal, but only because the appellant agreed to deposit Kshs. 1.2 million in court within 21 days.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The defendant would suffer substantial loss because enforcement of the judgment would result in her eviction from land she occupies.
The court found no dispute that the defendant was in possession of the suit properties. Since the plaintiffs were actively seeking enforcement through their eviction application, allowing it would dispossess her, and eviction was held to constitute substantial loss sufficient to satisfy Order 42 rule 6(2)(a).
Unreasonable delay
A three-and-a-half-month interval between judgment and the filing of the stay application was held not to be unreasonable delay.
Judgment was delivered on 31st October 2017, the notice of appeal was filed on 8th November 2017, and the stay application on 14th February 2018. The court found this three-and-a-half-month period did not amount to unreasonable delay for purposes of Order 42 rule 6(2)(a).
Security for due performance of the decree
Security of Kshs. 1,200,000 was fixed, computed using the mesne profits figures proposed by the defendant from the plaintiffs' own witness statements.
The plaintiffs' witness statements had sought mesne profits at Kshs. 80,000 per year for 2004 to 2007 and Kshs. 100,000 per year from 2008. Using the defendant's proposed formula, the court computed Kshs. 320,000 for 2004-2007 and Kshs. 880,000 for 2008-2018, totalling Kshs. 1,200,000, which it found reasonable as security.
Legal principles established
#- Enforcement of a judgment resulting in eviction of a party in possession constitutes substantial loss for purposes of an application for stay of execution pending appeal.
- Mesne profits as quantified by a party's own pleaded figures can be adopted as a reasonable measure of security for due performance of the decree.
Court orders
#- 1.Stay of execution of the judgment and decree granted pending hearing and determination of the defendant's appeal to the Court of Appeal
- 2.The defendant shall deposit security of Kshs. 1,200,000 (one million two hundred thousand) in court within 21 days from the date of delivery of the ruling; in default, the stay orders shall automatically lapse and Notice of Motion dated 24th January 2018 shall stand allowed with costs to the plaintiffs
- 3.Costs in the cause
- Jurisdiction invoked
- Order 42 rule 6(1) and (2) of the Civil Procedure Rules - jurisdiction of the court that delivered the decree to grant stay pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Waweru & another v Grace Nyokabi Kinuthia [2018] KEELC 2188 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2188/eng@2018-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.