Arthur Mathitu Nderitu & another v Settlement Fund Trustees & 2 others [2018] KEELC 4237 (KLR)
The bottom line
#A Kenyan landowner lost his bid to pause execution of a judgment because he waited five years, showed no real loss, and offered inadequate security.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The applicant failed to demonstrate the substantial loss he would suffer; no evidence was provided on the kind of irreparable loss
The applicant contended that execution would create a state of affairs affecting the chances of success of the appeal, but the court found that no evidence was provided on the kind of irreparable loss he would suffer if stay was not granted. The burden of demonstrating substantial loss was on the applicant and was not discharged.
Unreasonable delay and clean hands
The application filed on 9th October 2017, more than five years after the judgment of 22nd March 2012, was made with unreasonable delay and the applicant was guilty of laches and did not come to court with clean hands
Upon perusal of the court record, the application for stay was filed more than five years after the judgment appealed from. There was no explanation for the delay. The court held that the applicant could not be said to have acted without unreasonable delay, was guilty of laches, and did not come to court with clean hands.
Security for due performance
The security offered of Ksh 160,000/- was minimal and/or inadequate compared to the value of the suit property at Ksh 33,500,000/-
The applicant offered to deposit Ksh 160,000/- in a joint interest account, but the agreed independent valuation by Fortune Realtors Ltd placed the suit land at Ksh 33,500,000/-. The court found the offered security quite minimal and/or inadequate in the circumstances, failing the third condition under Order 42 Rule 6(2).
Legal principles established
#- Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory
Court orders
#- 1.The Plaintiff/Applicant's Notice of Motion dated 9th October 2017 is denied and dismissed
- 2.Costs of the application to the 2nd Defendant/Respondent
- On appeal from
- High Court of Kenya at Nairobi
- Jurisdiction invoked
- Order 42 rule 6, Order 22 rule 22, Order 9 rule 9, Order 51 rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arthur Mathitu Nderitu & another v Settlement Fund Trustees & 2 others [2018] KEELC 4237 (KLR)", Case Analysis (2018). Notice of Motion dated 9th October 2017 (Nyahururu ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4237/eng@2018-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.