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ELCAllowedNot stated in judgment (Appeal from Limuru CMCC 108/11)· [2019] KEELC 832 (KLR)

Paul Kamura Kirunge v John Peter Nganga [2019] KEELC 832 (KLR)

High Court of Kenya
8 November 2019
LGL. GACHERU
1,905 words in judgment
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The bottom line

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The High Court halted eviction on suit land, ruling that someone in possession who loses it pending appeal suffers substantial loss, provided they deposit Kshs.500,000 security.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 28th February 2019 by the Appellant, who had been sued successfully in Limuru CMCC 108/11, where judgment was delivered on 17th December 2018 granting the Respondent eviction and damages and ordering return of the title deed. The Appellant sought a stay of execution and an injunction restraining the Respondent from dealing with the suit property pending appeal, complaining that the trial magistrate's stay of 21st February imposed onerous conditions including vacation of the land, removal of livestock and a deposit of Kshs.500,000/=. The Respondent opposed, arguing the Appellant had enjoyed possession throughout the suit, alleging he had cut trees worth Kshs.500,000/= and demanding security of Kshs.3 million. The High Court (L. Gacheru J) applied Order 42 Rule 6(2) and the settled conditions for stay: substantial loss, no unreasonable delay, and security, coupled with whether the appeal would be rendered nugatory. Relying on authorities including Halal v Thornton & Turpin and Consolidated Marine v Nampijja, the court found substantial loss established because the Appellant was in possession and execution would evict him, rendering a successful appeal nugatory. It found no inordinate delay, rejected the tree-destruction allegation for want of evidence, and fixed security at Kshs.500,000/= payable within 30 days. The application was allowed entirely; stay and injunctive preservation orders were granted, and the Appellant was directed to file the Record of Appeal and have the matter listed under Section 79B of the Civil Procedure Act within 30 days.

Key legal issues

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01

Whether the Appellant demonstrated substantial loss

Holding

Substantial loss established because the Appellant was in possession of the suit land and the decree would evict him, rendering the appeal nugatory if executed

Reasoning

The court noted the decree included eviction and damages. The Respondent himself acknowledged the Appellant had been in possession, cultivating and rearing cattle. Losing possession at this stage would effectively evict him, so a successful appeal would serve no purpose. The court balanced this against not depriving a successful litigant of the fruits of judgment, but found possession tipped the scale in favour of substantial loss.

p. 3
02

Whether there was unreasonable delay in filing the application

Holding

No inordinate delay; judgment was delivered 17th December 2018, memorandum of appeal filed 19th December 2018, and a stay application had already been determined in the lower court on 21st February 2019

Reasoning

The court compared the filing dates and noted an existing stay application in the subordinate court determined on 21st February 2019, concluding the present application filed 28th February 2019 followed promptly thereafter.

p. 3
03

Whether security for the due performance of the decree should be furnished

Holding

Security of Kshs.500,000/= ordered within 30 days; the Respondent's claim that the Appellant destroyed trees worth Kshs.500,000/= was unsupported by evidence

Reasoning

The Applicant had offered to provide security. The Respondent alleged destruction of the suit land and demanded Kshs.3 million for cut trees, but the court found no evidence supported that allegation and rejected it as untenable, fixing security at Kshs.500,000/=.

p. 3

Legal principles established

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  • The conditions for grant of stay of execution pending appeal are substantial loss, no unreasonable delay and furnishing of security, and the applicant must also show the appeal would be rendered nugatory
  • The purpose of stay of execution pending appeal is to preserve the subject matter in dispute

Court orders

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  1. 1.The Plaintiff/Respondent restrained from selling, disposing of, charging or in any other way dealing with the suit property pending the hearing and determination of the appeal
  2. 2.Stay of execution of the judgment delivered in Limuru CMCC 108/11 on 17th December 2018 pending the hearing and determination of the appeal
  3. 3.The Appellant to provide security of Kshs.500,000/= within 30 days from the date of the order
  4. 4.The Appellant to file the Record of Appeal within 30 days and cause the matter to be listed before the Judge for directions under Section 79B of the Civil Procedure Act within the next 30 days
  5. 5.Costs of the application provided for (application allowed entirely)

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure ActSection 79B

Cases cited (6)

  • Masisi Mwita vs Damaris Wanjiku Njeri
    Civil Appeal No.107 of 2015 (2016) eKLR
  • Halal & Another vs Thornton & Turpin Ltd
  • Hassan Guyo Wakalo vs Straman EA Ltd
    (2013)
  • Canvass Manufacturers Ltd vs Stephen Reuben Karunditu
    Civil Application No.158 of 1994, (1994) LLR 4853
  • Stephen Wanjohi vs Central Glass Industries Ltd
    Nairobi HCC No.6726 of 1991
  • Consolidated Marine vs Nampijja & Another
    Civil App. No.93 of 1989 (Nairobi)
On appeal from
Limuru Senior Principal Magistrates Court
Limuru CMCC 108/11
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Paul Kamura Kirunge v John Peter Nganga [2019] KEELC 832 (KLR)", Case Analysis (2019). Not stated in judgment (Appeal from Limuru CMCC 108/11). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/832/eng@2019-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.