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ELCDismissedNotice of Motion dated 12th March 2018 (suit number not stated in judgment)· [2018] KEELC 2545 (KLR)

David Macharia Gakuya v Moses Mwangi Karanja [2018] KEELC 2545 (KLR)

Environment and Land Court
2 July 2018
LWL N Waithaka
1,153 words in judgment
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The bottom line

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The Nyeri Environment and Land Court refused to pause execution of a land judgment because the applicant proved no real loss and offered no security.

What this practically means

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Executive summary

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The defendant/applicant, David Macharia Gakuyu, moved the Environment and Land Court at Nyeri by notice of motion dated 12th March 2018 seeking stay of execution of the court's judgment delivered on 26th February 2018 pending an intended appeal. He annexed a notice of appeal dated 9th March 2018 and argued that execution would occasion him irreparable loss. The respondent opposed, contending the application was filed under the wrong provisions, that no substantial loss had been demonstrated, that no memorandum of appeal was attached, that the applicant had never occupied the suit property, and that the application was premature since no steps to execute had been taken. In reply, the applicant admitted citing the wrong provisions but invoked Article 159 of the Constitution and Sections 1A, 1B and 3 of the Civil Procedure Act. The court framed a single issue: whether the applicant had made out a case for stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules. It found the application, filed less than a month after judgment, was made without unreasonable delay. However, the applicant had not expressed willingness to furnish security, and had merely alleged irreparable loss without evidencing substantial loss. Applying Sammy Some Kosgei v. Grace Jelel Boit and Daniel Kihara Murage v. Jacinta Karuana Nyangi & Another, the court held that substantial loss is the epicenter of such applications and that the fact the subject matter is land does not make any loss substantial. The application was dismissed with costs to the plaintiff/respondent.

Key legal issues

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Whether the applicant satisfied the conditions in Order 42 Rule 6(2) for stay of execution pending appeal

Holding

The application was filed without unreasonable delay, but the applicant failed to demonstrate substantial loss and did not offer security, so the conditions were not met.

Reasoning

The application was filed less than a month after judgment, satisfying the no-unreasonable-delay limb. However, the applicant merely alleged he would lose irreparably without evidencing the loss, and expressed no willingness to furnish security. Applying Order 42 Rule 6(2) and the cited authorities, substantial loss is the epicenter of such applications, and mere allegation or the fact that land is the subject matter is insufficient. The application therefore failed.

p. 2

Legal principles established

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  • Substantial loss is the decisive consideration in an application for stay of execution pending appeal; without it the application fails regardless of security.
  • The mere fact that the subject matter of the appeal is land does not of itself prove substantial loss.
  • An applicant for stay must prove substantial loss by evidence, not mere allegation.

Court orders

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  1. 1.The application for stay pending appeal is dismissed
  2. 2.Costs to the plaintiff/respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A, 1B and 3
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (2)

  • Sammy Some Kosgei v. Grace Jelel Boit
    (2013) eKLR
  • Daniel Kihara Murage v. Jacinta Karuana Nyangi & Another
    (2015) eKLR
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 (stay of execution 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, "David Macharia Gakuya v Moses Mwangi Karanja [2018] KEELC 2545 (KLR)", Case Analysis (2018). Notice of Motion dated 12th March 2018 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2545/eng@2018-07-02

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