Bandari Investment Company Limited v National Police Service & 22 others [2018] KEELC 3951 (KLR)
The bottom line
#A Mombasa court refused to pause its own orders pending appeal because the applicants could not prove they would suffer real, substantial loss.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants demonstrated substantial loss justifying stay of the order of 19th December 2017
Stay refused because the Applicants did not demonstrate substantial loss
The court noted the impugned limb merely permitted laying of a foundation wall up to 2 feet for boundary identification and a census, and expressly did not confer possession. The Applicants annexed no pleadings showing an adverse possession claim, no proof of destroyed property, and no interference with their day-to-day activities up to the level of construction. The court held mere assertion of prejudice was insufficient.
Whether the application was brought without unreasonable delay
There was no delay; the application was filed 10 days after the orders
The orders were issued on 19th December 2017 and the application filed on 29th December 2017. The court found the 10-day interval amounted to promptitude for purposes of Order 42 Rule 6(2)(a).
Whether the intended appeal would be rendered nugatory if stay was not granted
The appeal would not be rendered nugatory
The court reasoned that a stay helps preserve the subject matter of the appeal, but here the suit land would still exist post-appeal and the orders of 19/12/2017 expressly did not grant ownership or possession to any party, so success on appeal would not be hollow.
Whether the Applicants should provide security for the 5th Respondent's contractual exposure
No security ordered as the stay was refused
The 5th Respondent sought a conditional stay with a deposit to guard against claims for breach of contract or by the National Construction Authority. The court held the 5th Respondent could not seek security from the Applicants since the court had already ordered that building costs not be recovered from any Respondents, and security was moot once the stay was refused.
Legal principles established
#- A party seeking stay of execution under Order 42 Rule 6 must demonstrate substantial loss, file the application without unreasonable delay, and offer security
- It is not enough to merely allege prejudice; the applicant must adduce evidence of substantial loss
- A stay preserves the subject matter of the appeal; where the suit land will remain present post-appeal and the orders confer no ownership or possession, the appeal is not rendered nugatory
Court orders
#- 1.The application dated 29th December, 2017 is dismissed for lack of merit
- 2.The orders suspended on 7th February, 2018 pertaining to the construction of the wall are reinstated
- 3.The exparte orders earlier issued on 4th December 2017 are extended pending determination of the first application dated 1st December 2017
- 4.Costs of the application to be borne by the Applicants
- On appeal from
- null
- null
- Jurisdiction invoked
- Sections 1A and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules (application for stay of execution pending appeal to the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bandari Investment Company Limited v National Police Service & 22 others [2018] KEELC 3951 (KLR)", Case Analysis (2018). Constitutional Petition No. 15 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3951/eng@2018-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.