Seventhday Adventist Church (E.A) Ltd (Nairobi East S.Da. Church) v Strathmore Educational Trust Registered Trustees & 2 others [2019] KEELC 232 (KLR)
The bottom line
#A Nairobi court let a church keep only its parking and access pending appeal, ruling that being unable to pay a judgment is not a reason to stop execution.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff would suffer substantial loss if eviction from L.R No. 209/19707 proceeded before the intended appeal
Substantial loss was established only in respect of the portion of the land used for parking and accessing the church building, not the whole 2.97 acres occupied
The court found uncontroverted evidence that the plaintiff, a church, used part of the disputed land for parking and access to its church building, so it would lose these uses if eviction proceeded. However, the rest of the 2.97 acres was either vacant or let out to a third party, and no loss would arise from surrendering it. There was also no evidence that the 1st defendant could not restore or compensate for the land if the appeal succeeded.
Whether the plaintiff's inability to raise the decretal sums justified a stay of the monetary awards
Inability to pay a decretal amount is not a valid ground for stay; the monetary decrees were not stayed
The plaintiff argued the awards of Kshs. 2,000,000/= and Kshs. 72,940/= to the 1st defendant and Kshs. 250,000/= to the 3rd defendant were substantial and beyond its means as a church. The court held that inability to pay is not a valid ground for stay and saw no reason to stay the monetary aspects of the decrees in favour of either defendant.
Whether the interim orders of 10th October, 2012 and the alleged disobedience of them should defeat the application
The 2012 orders were spent upon delivery of the judgment and were too unclear in scope to found a determination of the application
The 1st defendant argued the plaintiff had violated interlocutory orders of 10th October, 2012 and approached the court with dirty hands. The court held those orders were spent when judgment was delivered on 30th September, 2019, and their scope was unclear - where the 1 acre started and ended, and whether it extended to the parking area, was not clear - so it would not be safe to determine the application on the basis of those orders.
Whether the plaintiff demonstrated a right of access over the 3rd defendant's land warranting a stay of her decree
No right over the 3rd defendant's land was shown at trial; the alleged alternative access did not justify a stay
At trial the plaintiff had claimed access through the 1st defendant's land; the claim that it accessed the church through the 3rd defendant's land emerged only in submissions on the application. The court was not told of any right the plaintiff had over the 3rd defendant's land, found no substantial loss, and declined to grant the 'luxury' of an alternative entrance through land over which the plaintiff had no claim.
Legal principles established
#- No order for stay of execution shall be made unless substantial loss may result to the applicant unless the order is made, the application has been made without unreasonable delay, and security for the due performance of the decree has been given
- Substantial loss is the cornerstone of the jurisdiction for granting stay; without evidence of substantial loss an appeal is rarely rendered nugatory
- Inability to pay a decretal amount is not a valid ground for stay of execution
- A stay of execution may be granted partially and conditionally, limited to the use of the land on which the applicant would otherwise suffer substantial loss, and conditioned on the deposit of security
Court orders
#- 1.A partial and conditional stay of execution issued in respect of the limb of the judgment of 30th September, 2019 ordering the eviction of the plaintiff from L.R No. 209/19707, to the extent that pending the intended appeal to the Court of Appeal, the plaintiff shall not be evicted from that portion of L.R No. 209/19707 that it uses to access the church building and for parking during normal church services
- 2.The plaintiff to deposit in court, as a condition for the stay order, a sum of Kshs. 1,000,000/= within 30 days from the date of the ruling, in default of which the stay shall lapse automatically without reference to the court
- 3.The 1st defendant to be entitled to possession of the portion of L.R No. 209/19707 hitherto occupied by the plaintiff save for the parking area in respect of which the stay order applies
- 4.The application dismissed in respect of the monetary portion of the decree in favour of the 1st defendant
- 5.The application dismissed wholly as against the 2nd and 3rd defendants
- 6.Each party to bear its own costs of the application
- Jurisdiction invoked
- Order 51 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Seventhday Adventist Church (E.A) Ltd (Nairobi East S.Da. Church) v Strathmore Educational Trust Registered Trustees & 2 others [2019] KEELC 232 (KLR)", Case Analysis (2019). Not stated in the judgment (Nairobi, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/232/eng@2019-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.