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ELCPartially AllowedNyeri CMCC No. 439 of 2011 (appeal thereof; notice of motion dated 7th December 2016)· [2018] KEELC 4299 (KLR)

Paul Muriithi Mwai v Nathan Warutere (Environment & Land Case 12 of 2016) [2018] KEELC 4299 (KLR)

High Court of Kenya
22 February 2018
LWL N Waithaka
1,342 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Nyeri refused to pause enforcement of a costs decree because the applicant showed no actual loss he would suffer and could not offer any security.

What this practically means

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Executive summary

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The applicant, Paul Muriithi Mwai, had been sued successfully in Nyeri CMCC No. 439 of 2011, in a decree requiring him to vacate plot No.817B in Mwirichwiri Farmers Company within sixty days failing which he would be evicted. He filed a notice of motion dated 13th July 2016 seeking stay of execution pending appeal, but was evicted during its pendency. He then filed the motion dated 7th December 2016 seeking stay of the decree and certificate for costs issued on 16th November 2016, an injunction against harassment by auctioneers, and costs. The respondent, Nathan Warutere Ngure, opposed, contending that no substantial loss had been demonstrated and that the applicant should simply pay costs and pursue his appeal. The court set out the three prerequisites under Order 42 Rule 6 of the Civil Procedure Rules: absence of undue delay, substantial loss, and security. It found the application filed only three weeks after service of the decree, hence no unreasonable delay. However, applying Kenya Shell, James Wangalwa and Antoine Ndiaye, the court held that substantial loss is the cornerstone of the jurisdiction and must be proved with real and cogent evidence. The applicant demonstrated no loss and admitted he was jobless and unable to give security. Stay of the decree for costs was therefore refused, with costs of the application awarded to the respondent. Leave to withdraw the overtaken application of 13th July 2016 was granted.

Key legal issues

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01

Whether the applicant satisfied the prerequisites for stay of execution under Order 42 Rule 6

Holding

Delay was not unreasonable, but substantial loss and security were not demonstrated, so stay of the decree for costs was refused

Reasoning

The court applied the three prerequisites in Order 42 Rule 6: no undue delay, substantial loss, and security. It found the application was filed within three weeks of service of the decree, so no delay. However, applying Antoine Ndiaye, the applicant offered no evidence of the loss he would suffer and admitted he could not give security, being jobless. Stay was therefore denied, though withdrawal of the earlier motion was allowed.

p. 2
02

Whether leave to withdraw the earlier application dated 13th July 2016 should be granted

Holding

Leave granted because the application had been overtaken by events following the applicant's eviction

Reasoning

The application dated 13th July 2016 sought stay of a decree requiring the applicant to vacate plot No.817B, but during its pendency he was evicted. The court accepted the changed circumstances rendered that application moot and permitted its withdrawal even while refusing stay of the costs decree.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone of the High Court's jurisdiction to grant stay of execution pending appeal
  • In a money decree, the onus lies on the applicant to prove with real and cogent evidence that the respondent cannot refund the decretal sum should the appeal succeed

Court orders

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  1. 1.Prayer for leave to withdraw the application dated 13th July 2016 allowed on account of changed circumstances
  2. 2.Prayer for stay of execution of the decree for costs in Nyeri CMCC No. 439 of 2011 denied for lack of merit
  3. 3.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (4)

  • Kenya Shell Limited vs. Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) 1 KAR 1018
  • James Wangalwa & Another vs. Agnes Naliaka Cheseto
    Bungoma HC Misc Application No. 42 of 2011
  • Antoine Ndiaye v. African Virtue University
    (2015) eKLR
  • Machira t/a Machira & Co. Advocates vs. East African Standard (No 2)
    (2002) KLR 63
On appeal from
Nyeri Chief Magistrate's Court
Nyeri CMCC No. 439 of 2011
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (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, "Paul Muriithi Mwai v Nathan Warutere (Environment & Land Case 12 of 2016) [2018] KEELC 4299 (KLR)", Case Analysis (2018). Nyeri CMCC No. 439 of 2011 (appeal thereof; notice of motion dated 7th December 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4299/eng@2018-02-22

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