Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2018] KEELC 4851 (KLR)

Aster Holdings Limited v City Council of Nairobi & 4 others [2018] KEELC 4851 (KLR)

Environment and Land Court
18 January 2018
EOE. O. Obaga
1,003 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to pause execution of a judgment cancelling a land title because the losing party showed no real harm from waiting for the appeal.

What this practically means

#

Executive summary

#
The 5th defendant/applicant filed a notice of motion dated 2nd November 2017 seeking stay of execution pending appeal against the court's judgment of 31st October 2017, by which its title over a property valued at Kshs.3 billion had been ordered cancelled and it was ordered to pay Kshs.100,000,000 general damages. The plaintiff/respondent opposed, contending that the application was an abuse of process, that the court was functus officio, and that the threshold in Order 42 Rule 6 of the Civil Procedure Rules had not been met. The court framed a single issue: whether the applicant met the Order 42 Rule 6 threshold. It found the application was filed without unreasonable delay, being lodged two days after judgment. On substantial loss, the court held that the cancellation of an illegally issued title could simply be reversed on appeal if it succeeded, there was no evidence the respondent intended to dispose of the property, and the applicant remained in occupation without development. As to the money decree, an appeal would not be rendered nugatory since monies paid could be refunded, and the applicant had not even suggested the respondent was unable to repay, invoking Kenya Shell Ltd v Karuga and National Industrial Bank Ltd v Wasike on the burden of proving inability to refund. The application was accordingly dismissed with costs to the respondent.

Key legal issues

#
01

Whether the applicant demonstrated substantial loss for stay of execution

Holding

No substantial loss shown: cancellation of an illegally issued title can simply be reversed on appeal, and the money decree is refundable.

Reasoning

The court found the applicant's title was illegally issued over a portion of an amalgamated property to which the respondent held a valid title; if the appeal succeeded, the register could simply be restored. No evidence showed the respondent intended to dispose of the property or could not refund the Kshs.100,000,000 decree. Without evidence of substantial loss, the respondent should not be kept out of the fruits of the decree.

p. 1
02

Whether the application was filed without unreasonable delay

Holding

Yes - the judgment was delivered on 31st October 2017 and the application filed on 2nd November 2017.

Reasoning

The court found the two-day interval between judgment and filing of the application constituted no delay, satisfying the first limb of Order 42 Rule 6. The application nonetheless failed on the substantial loss requirement.

p. 1

Legal principles established

#
  • For stay pending appeal to be granted, the applicant must file the application without unreasonable delay, demonstrate substantial loss, and provide security.
  • If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event.
  • Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden shifts to the respondent to show what resources he has.

Court orders

#
  1. 1.The applicant's notice of motion dated 2nd November 2017 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Court of Appeal RulesRule 5(2)

Cases cited (2)

  • Kenya Shell Limited Vs Benjamin Karuga & another
    (1986) eKLR
  • National Industrial Bank Ltd Vs Aquivas Francis Wasike & another
    (2006) eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Aster Holdings Limited v City Council of Nairobi & 4 others [2018] KEELC 4851 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4851/eng@2018-01-18

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