Chutha v Ndung’u (Environment & Land Case 239 of 2012) [2018] KEELC 4877 (KLR)
The bottom line
#A Kenyan land court refused to pause the judgment's enforcement because the applicant couldn't show he'd suffer real loss or offer security, but allowed the late appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether a stay of execution pending appeal should be granted
Stay refused because the plaintiff failed to demonstrate substantial loss and failed to offer security for the due performance of the decree
The court adopted the conditions for stay set out in Stanley Karanja Wainaina & Another v Ridon Anyangu Mutubwa [2016] eKLR: application without undue delay, demonstration of substantial loss, and offer of security. The plaintiff satisfied none of the substantive conditions: he did not show substantial loss nor offer security, so the stay could not issue notwithstanding the intended appeal.
Whether the plaintiff should be granted leave to file a notice of appeal out of time
Leave granted, on the basis that the plaintiff received notice of delivery of judgment two months after judgment was delivered and promptly applied for certified copies of the proceedings
The plaintiff explained the delay: he received notice of delivery of judgment on 10/1/2018, two months after judgment, and his advocates promptly applied for certified copies of proceedings, judgment and decree on 11/1/2018, receiving the judgment on 15/1/2018. On this explanation the court found it fit to grant leave to appeal out of time, even while refusing the stay.
Legal principles established
#- The conditions for granting a stay of execution pending appeal are that the application is made without undue delay, that the applicant demonstrates he will suffer substantial loss if the order is not granted, and that the applicant offers security for the due performance of the decree
- A judgment may lawfully be delivered by a different judge from the one who signed it under order 21 of the Civil Procedure Rules
Court orders
#- 1.The court declines to order stay of execution of the decree issued pursuant to the judgment delivered in this matter
- 2.Leave is granted to the plaintiff to file an appeal out of time
- 3.The defendant will have the costs of this application
- On appeal from
- Environment and Land Court
- Not stated
- Jurisdiction invoked
- Inherent jurisdiction and Order 21 of the Civil Procedure Rules in respect of stay of execution and extension of time to appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chutha v Ndung’u (Environment & Land Case 239 of 2012) [2018] KEELC 4877 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4877/eng@2018-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.