Stanley Theuri (Suing as the legal Representative of the Estate of Francis K. Mwai v David Kamau Kariuki (Sued as the legal Representative of the Estate of Esther Wairimu Kirii) & 2 others [2019] KEELC 597 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the conditions for stay of execution under Order 42 Rule 6(2) were satisfied
Stay refused: no substantial loss demonstrated, no evidence of developments on the land, no appeal filed and no threat of alienation by the Plaintiff; security insignificant in a land matter.
The court applied Order 42 Rule 6(2) requiring substantial loss, absence of unreasonable delay and security. It found the applicant produced no evidential documentation of developments on the suit land, no appeal had been filed, and no threat of disposal by the Plaintiff, so implementation of the decree would not occasion substantial loss.
Whether the judgment and decree should be set aside or varied for sufficient cause
Refused: the 1st Defendant deliberately failed to attend the hearing; his advocate was present and participated fully, and no evidence was ever tendered to support the defence.
Applying Order 12 Rule 7 and the test of sufficient cause, the court reviewed the record showing the defendant's counsel cross-examined the Plaintiff's witnesses and the case was closed on 29th November 2018. Filing a defence without evidence is nothing; a party must tender evidence in support of allegations. The application was an abuse of process.
Whether the judgment should be reviewed under Section 80 of the Civil Procedure Act and Order 45 Rule 1
Refused: no discovery of new and important matter or evidence, no mistake or error apparent on the face of the record, and no other sufficient reason.
The court held that review under Order 45 Rule 1 relates to facts which may emerge from evidence and due diligence to discover facts not within the applicant's knowledge when the decree was passed. The 1st Defendant advanced no such evidence, and an erroneous conclusion of law or evidence is a ground for appeal, not review.
Whether the Plaintiff's application for police-assisted eviction should be allowed
Allowed: judgment for eviction having been entered, the OCS Miharati, Kipipiri Police Station was authorised to enforce compliance and maintain peace upon eviction under Sections 152E and 152G of the Land Act.
The court noted its judgment of 7th May 2019 directed the 1st Defendant to give vacant possession of 6 acres within 30 days failure to which eviction would issue. Despite knowledge of the judgment and decree, the 1st Defendant failed to give vacant possession and would not vacate unless forcibly evicted.
Legal principles established
#- An applicant for stay of execution must demonstrate substantial loss, apply without unreasonable delay and offer security; substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
- The discretion to set aside a judgment is intended to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a person who deliberately seeks to obstruct or delay the course of justice.
- An erroneous conclusion of law or evidence is not a ground for review but may be a good ground for appeal.
Court orders
#- 1.The Plaintiff's Application dated 10th June 2019 is allowed and the OCS Miharati, Kipipiri Police Station is authorised to enforce compliance of the court's orders and maintain peace upon eviction pursuant to Sections 152E and 152G of the Land Act.
- 2.The 1st Defendant's Applications dated 14th June 2019, 15th August 2019 and 24th June 2019 are dismissed with costs to the Plaintiff.
- Jurisdiction invoked
- Original land jurisdiction of the Environment and Land Court; enforcement of decree under Sections 152E and 152G of the Land Act and Order 42, Order 45 and Order 12 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stanley Theuri (Suing as the legal Representative of the Estate of Francis K. Mwai v David Kamau Kariuki (Sued as the legal Representative of the Estate of Esther Wairimu Kirii) & 2 others [2019] KEELC 597 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/597/eng@2019-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.