Patrick Kithaka Borici & another v Shadrack Nyaga Njeru [2019] KEELC 478 (KLR)
The bottom line
#The Environment and Land Court paused an eviction, but only because the landowners agreed to deposit Kshs. 500,000 with the court within 21 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants satisfied limb (a) of Order 42 rule 6(2) - substantial loss and absence of unreasonable delay
Limb (a) was satisfied: the impugned judgment ordered the appellants' eviction and removal from the suit land, so substantial loss could follow if executed; the application was brought without unreasonable delay.
The court examined the orders of the lower court, which directed the defendants to move out of the suit land or face forcible eviction, with eviction to be effected three months after judgment. The respondent argued the appellants were not in occupation, so there was nothing to stay. The court reasoned that if the applicants were not on the land, the eviction orders would have had no purpose; the only orders issued were for eviction and removal, hence stay was tenable.
Whether limb (b) of Order 42 rule 6(2) - security - could be satisfied
The court exercised its discretion to fix security, granting stay on condition the applicants deposit Kshs. 500,000 within 21 days, failing which the stay automatically lapses.
Order 42 rule 6(2) requires security for the due performance of the decree as the court orders. The applicants, described as a primary school teacher and a peasant farmer, had offered to provide reasonable security if the court were inclined to order a deposit. The court granted the stay subject to that deposit and imposed directions for canvassing the appeal by written submissions.
Legal principles established
#- No order for stay of execution shall be made unless substantial loss may result to the applicant, the application is made without unreasonable delay, and security for due performance of the decree is given.
- The court, in deciding a stay application, must consider the orders actually issued in the impugned judgment; if the orders require eviction and removal of the applicants, an order for stay is tenable notwithstanding claims that they are not in occupation.
Court orders
#- 1.Stay of execution of the judgment and orders issued by Hon. J. M. Njoroge, CM in Civil Case No. 127 of 2014 at Chuka granted on condition that the applicants deposit Kshs. 500,000 as security with the court within 21 days, failing which the stay lapses and stands vacated
- 2.The appeal to be canvassed by way of written submissions
- 3.Applicants/appellants to file and serve written submissions concerning the appeal within 21 days
- 4.Respondent to file and serve written submissions within 21 days after receipt of the applicants' submissions
- 5.Parties to come to court for directions on 19th February, 2020
- 6.Costs in the cause
- On appeal from
- Chief Magistrate's Court at Chuka
- Civil Case No. 127 of 2014
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules 2010 and section 3A of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Kithaka Borici & another v Shadrack Nyaga Njeru [2019] KEELC 478 (KLR)", Case Analysis (2019). Chuka ELC Appeal No. 9 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/478/eng@2019-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.