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ELCPartially Allowed· [2018] KEELC 2188 (KLR)

Michael Waweru & another v Grace Nyokabi Kinuthia [2018] KEELC 2188 (KLR)

Environment and Land Court
20 July 2018
1,557 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 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

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Executive summary

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This ruling of the Environment and Land Court at Nakuru determined two applications heard together following judgment delivered on 31st October 2017 by Y. M. Angima J., which allowed the plaintiffs' suit as prayed and dismissed the defendant's counterclaim. The plaintiffs applied by Notice of Motion dated 24th January 2018 for an eviction order against the defendant and for the lifting of a caution she had placed on the suit parcels, Naivasha/Mwichingiri Block 2/771 and 772. The defendant opposed and separately applied by Notice of Motion dated 14th February 2018 for stay of execution pending her appeal to the Court of Appeal, contending the appeal would be rendered nugatory if stay was refused. D. O. Ohungo J. applied the three conditions in Order 42 rule 6(1) and (2) of the Civil Procedure Rules. First, the defendant was in occupation of the suit properties, so enforcement through eviction would constitute substantial loss. Second, the three-and-a-half-month interval between judgment and the stay application was held not to be unreasonable delay. Third, adopting the mesne profits figures from the plaintiffs' own witness statements, the court fixed security at Kshs. 1,200,000, finding the figure reasonable. Relying on Butt v Rent Restriction Tribunal and English authorities including Wilson v Church (No 2) and Erinford Properties, the court allowed the stay application and declined the plaintiffs' eviction application as it would contradict the stay. Stay was granted pending appeal, conditioned on the defendant depositing Kshs. 1,200,000 in court within 21 days, failing which the stay lapses and the eviction application stands allowed with costs to the plaintiffs. Costs were awarded in the cause.

Key legal issues

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01

Substantial loss

Holding

The defendant would suffer substantial loss because enforcement of the judgment would result in her eviction from land she occupies.

Reasoning

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).

p. 2
02

Unreasonable delay

Holding

A three-and-a-half-month interval between judgment and the filing of the stay application was held not to be unreasonable delay.

Reasoning

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).

p. 2
03

Security for due performance of the decree

Holding

Security of Kshs. 1,200,000 was fixed, computed using the mesne profits figures proposed by the defendant from the plaintiffs' own witness statements.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 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. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1)
  • Civil Procedure RulesOrder 42 rule 6(2)

Cases cited (4)

  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • Wilson v Church (No 2)
    12 Ch D (1879) 454
  • Erinford Properties Limited v Cheshire County Council
    [1974] 2 All ER 448
  • Attorney General v Emerson and Others
    24 QBD (1889) 56
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

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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, "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.