Nancy Muthoni Macere (Suing as the Legal Representative of the Estate of Peter Machere Kamundo (Deceased) v Kirinyaga County Government & another; Michael Muthii Mwangi Interested Party [2019] KEELC 603 (KLR)
The bottom line
#A Kenyan court refused to freeze execution of a money judgment because the applicant waited seven months and showed no real loss.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant satisfied the three conditions for stay of execution under Order 42 Rule 6(2) CPR
The applicant failed on two of the three grounds: there was unreasonable delay of over seven months, and no substantial loss was demonstrated; only willingness to offer security was shown
The lower court judgment was delivered on 20th December 2018 and the applicant took no steps until served with notice of taxation. A delay of over seven months was held unreasonable. The decree was purely monetary (Ksh. 56,726/= in costs) and execution of a decree of a competent court is a legal process; substantial loss was not shown absent proof the respondent was a man of straw. The applicant only expressed willingness to offer security, satisfying one of three conditions.
Whether the dismissal of the application dated 30th July 2019 for non-attendance should be set aside
The dismissal orders were set aside and/or varied, though the interim stay orders were not reinstated
The court considered the applicant's overall conduct in the intended appeal. Although the file movement between Kerugoya and Muranga explained part of the non-attendance, the court found no plausible explanation why a represented applicant could not follow up a certificate-of-urgency application from 30th July to 14th August 2019. The intended appeal was an afterthought, but the dismissal order was nonetheless set aside and/or varied in partial success of the application.
Whether the intended appeal was an afterthought
The court agreed the intended appeal was an afterthought, drawn only after service of notice of taxation
Judgment was delivered on 20th December 2018 and the applicant took no action to review, set aside or appeal until served with notice of taxation in execution of the decree. The draft Memorandum of Appeal was not filed within the stipulated period. This conduct bore on the court's assessment of the application and its discretion in balancing the interests of justice.
Legal principles established
#- An applicant seeking stay of execution pending appeal must demonstrate substantial loss, that the application was made without unreasonable delay, and must offer security for the due performance of the decree
- Execution of a lawful monetary decree does not amount to substantial loss unless the applicant shows the decree-holder cannot repay if the appeal succeeds
Court orders
#- 1.The orders of dismissal of the applicant's Notice of Motion dated 30th July 2019 is hereby set aside and/or varied
- 2.The costs of this application shall be borne by the applicant in any event
- 3.The interim orders granted on 30th July 2019 are not reinstated
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules; Article 159(2)(d) & (e) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nancy Muthoni Macere (Suing as the Legal Representative of the Estate of Peter Machere Kamundo (Deceased) v Kirinyaga County Government & another; Michael Muthii Mwangi Interested Party [2019] KEELC 603 (KLR)", Case Analysis (2019). Notice of Motion dated 14th August 2019 (arising from CMCC No. 323 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/603/eng@2019-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.