Agnes Njoki Kiige Muchira & 3 others v Samson Gachoki Kamiti & another [2019] KEELC 90 (KLR)
The bottom line
#The Kerugoya Environment and Land Court dismissed a bid to pause enforcement of a land judgment because the applicants proved no substantial loss, explained no delay, and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The applicants failed to prove substantial loss; their claim of living on the suit land was contradicted by uncontroverted evidence of alternative land and a plot
The applicants contended they had farmed the suit land for over a decade and had nowhere else to go. The respondent deponed that they owned another parcel at South Ngariama and a plot at Kutus Village No. 231, with an allotment copy annexed. Those averments were not controverted in the supplementary affidavit, so the court found substantial loss unproved.
Unreasonable delay
The delay from 18th December 2018 to 30th May 2019 was not satisfactorily explained
The applicants claimed they and their advocate were not notified of the judgment date, but the advocate did not swear an affidavit confirming this, and the applicants did not explain how they learned of the judgment. The court therefore found the delay unexplained.
Security for due performance
No security or undertaking was given for due performance of the decree
Order 42 Rule 6 requires the applicant to furnish such security as the court orders. The court found that the applicants offered none, discharging the third condition for stay.
Legal principles established
#- Stay of execution pending appeal requires substantial loss, no unreasonable delay, and security for due performance of the decree
- The applicant must also demonstrate that the intended appeal will be rendered nugatory if stay is not granted
Court orders
#- 1.The application dated 30th May 2019 is dismissed with costs
- On appeal from
- Subordinate Court (CMCC)
- CMCC No. 319 of 2008
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agnes Njoki Kiige Muchira & 3 others v Samson Gachoki Kamiti & another [2019] KEELC 90 (KLR)", Case Analysis (2019). Notice of Motion dated 30th May 2019 (ELC, Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/90/eng@2019-12-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.