Julius Kerika v Wilson Kaata [2019] KEELC 487 (KLR)
The bottom line
#A Kenyan High Court paused execution of a Makindu judgment because the losing party occupied the property and his appeal would be pointless otherwise.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules
The court found substantial loss, absence of undue delay, and held the interests of justice favoured exercise of discretion in the Applicant's favour; stay was granted.
The Applicant deposed that he is in occupation of the suit premises and that execution would cause him irreparable harm and render his appeal nugatory. The judgment was delivered on 25th May 2018 and the application filed on 14th June 2018, which the court found not to be an undue delay. The delay in obtaining the typed judgment was attributed to the court, not the Applicant. The Respondent's objection that the Applicant did not come with clean hands and that the appeal lacked merit did not persuade the court.
Whether the stay would prejudice the Respondent
The court found no prejudice to the Respondent and held the interests of justice demanded the stay.
The Applicant deposed that the Respondent would not suffer prejudice if the application was allowed. The Respondent's counter-deposition, that the application was aimed at denying him the fruits of his judgment and that the appeal had no high chance of success, was not found sufficient to displace the discretion. The court balanced the parties' positions and concluded the interests of justice demanded exercise of discretion in the Applicant's favour, granting the stay and awarding costs of the application to the Applicant.
Legal principles established
#- An applicant for stay of execution pending appeal must demonstrate substantial loss, that the application was made without unreasonable delay, and furnish such security as the court orders for due performance of the decree.
- Occupation of the suit property with investment made on it constitutes substantial loss warranting stay of execution.
Court orders
#- 1.Stay of execution of the judgment and decree in Makindu Civil Case No. 51 of 2011 pending the hearing and determination of the appeal
- 2.Costs of the application provided for to the Applicant
- On appeal from
- Makindu (subordinate) court
- Makindu Civil Case No. 51 of 2011
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Kerika v Wilson Kaata [2019] KEELC 487 (KLR)", Case Analysis (2019). Not stated in judgment (arising from Makindu Civil Case No. 51 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/487/eng@2019-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.