Kirinyaga Wood Treatment Ltd v Geoffrey Ng’ang’a Kariuki t/a Inter Tropical Timber Trading Limited [2018] KEELC 2538 (KLR)
The bottom line
#A Kenyan court refused to pause enforcement of a judgment because the defendant had already been evicted, proved no real loss, and misled the court.
What this practically means
#Executive summary
#Key legal issues
#Whether substantial loss was demonstrated
It was not; the defendant only made a bare assertion of irreparable harm and gave no evidence that the plaintiff could not refund the decretal sum if the appeal succeeded
The defendant deponed only that he would suffer irreparable harm rendering the appeal nugatory, without specifying the loss. For a monetary decree of Ksh. 6,511,524.95 plus mesne profits, the applicant had to show the plaintiff could not refund the sum on success. The plaintiff, as registered proprietor with plant, building and developments on the land, could readily refund it.
Whether stay of the eviction order could still issue
No, since the defendant had already been evicted on 12th October 2017 and the plaintiff had taken possession, an unrebuted averment
The plaintiff's Managing Director deponed that the defendant was evicted and the plaintiff took immediate possession after the judgment. That averment was not rebutted. A stay of an executed act would serve no purpose and courts do not act in vain.
Whether the defendant deserved the Court's discretion
He did not, having failed to approach the Court with clean hands
The defendant annexed payments made in 2013, 2014 and 2015 yet deponed he had been paying rent during the subsistence of proceedings, although the suit was filed on 3rd December 2015; the 2013 and 2014 payments could only relate to other proceedings, and his defence never pleaded payment, only a blanket denial.
Whether delay in filing the application was unreasonable
No; the judgment was delivered on 6th October 2017 and the application filed on 19th October 2017, which was without unreasonable delay
Comparing the date of judgment with the date of filing, the court found the defendant moved to court without unreasonable delay, satisfying that limb of Order 42 Rule 6(2).
Legal principles established
#- An applicant for stay of execution must demonstrate substantial loss, file the application without unreasonable delay, and furnish security for due performance of the decree
- In a monetary decree, the applicant must show by evidence that the decree-holder cannot refund the decretal sum if the appeal succeeds; mere assertion of irreparable harm is insufficient
- A court will not order a stay of an act already carried out; courts do not act in vain
- A high probability of success of the intended appeal is not a requirement under Order 42 Rule 6
Court orders
#- 1.The defendant's Notice of Motion dated 19th October 2017 is dismissed with costs
- Jurisdiction invoked
- Order 42 Rule 6(1) and (2) of the Civil Procedure Rules; Sections 1A, 3A and 66 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirinyaga Wood Treatment Ltd v Geoffrey Ng’ang’a Kariuki t/a Inter Tropical Timber Trading Limited [2018] KEELC 2538 (KLR)", Case Analysis (2018). Notice of Motion dated 19th October 2017 (arising from judgment dated 6th October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2538/eng@2018-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.