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ELCPartially AllowedApplication dated 11th February 2019 arising from Maua CMCC No. 186 of 2014· [2019] KEELC 918 (KLR)

Richard Mugaa v Cyrus Muthui Mwaura [2019] KEELC 918 (KLR)

Environment and Land Court
12 November 2019
LMLUCY. N. MBUGUA
923 words in judgment
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The bottom line

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The Environment and Land Court in Meru paused execution of a money judgment, but only for one year and only if the appellant deposited Ksh. 100,000 in security within 30 days.

What this practically means

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Executive summary

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This is a ruling on an application dated 11th February 2019 by Richard Mugaa, the appellant, seeking a stay of execution of the judgment and order of G.N. Wakahiu (C.M.) dated 31st December 2018 in Maua CMCC No. 186 of 2014, Cyrus Muthui Mwaura v Richard Mugaa & Anor. The application, brought under Order 42 Rule 6 of the Civil Procedure Rules, 2010, was supported by the applicant's affidavit and opposed by the respondent through a replying affidavit dated 12th April 2019, in which the respondent asserted a contractual obligation, noted the applicant's failure to prosecute an application to set aside the interlocutory judgment, and denied that the applicant would suffer substantial loss. The court canvassed the application by written submissions and identified three conditions for stay: absence of unreasonable delay, substantial loss, and security. It found the 41-day delay not inordinate. On substantial loss, relying on Amal Hauliers Limited v Abdulnasir Abukar Hassan and the National Industrial Credit Bank decision, the court held that once the applicant expressed fear of the respondent's inability to repay, the evidential burden shifted to the respondent, who failed to demonstrate ability to refund the decretal sum; substantial loss and nugatory appeal were therefore established. The court granted a conditional stay: the applicant to deposit Ksh. 100,000 into court within 30 days failing which the stay lapses; the stay limited to one year; and the applicant to bear the costs of the application.

Key legal issues

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01

Unreasonable delay

Holding

A 41-day delay in filing the application was not inordinate

Reasoning

The application was filed 41 days after the trial court's judgment. The court acknowledged the delay but found it not inordinate so as to defeat the application.

p. 1
02

Substantial loss

Holding

Substantial loss established where respondent did not demonstrate ability to refund the decretal sum, rendering the appeal nugatory if executed

Reasoning

Applying Amal Hauliers, the applicant need not know the respondent's resources; once inability to repay is asserted, the burden shifts to the respondent. The respondent failed to demonstrate ability to refund, so execution would cause substantial loss and render the appeal nugatory.

p. 2
03

Security

Holding

Court imposed deposit of Ksh. 100,000 as security within 30 days and limited the stay to one year

Reasoning

The applicant gave no indication as to security, so the court in its discretion made appropriate orders conditional on a deposit into court, with the stay expiring after one year.

p. 2

Legal principles established

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  • Once an applicant expresses that a respondent would be unable to refund the decretal sum, the evidential burden shifts to the respondent to show what resources he has
  • Stay of execution under Order 42 Rule 6 requires substantial loss, absence of unreasonable delay and provision of security

Court orders

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  1. 1.A stay of execution of the judgment in Maua CMCC No. 186 of 2004 granted on condition that the applicant deposits Ksh. 100,000 into court as security within 30 days, failing which the stay shall lapse
  2. 2.The order of stay shall last for a period of one year ONLY
  3. 3.The applicant to meet the costs of the application
On appeal from
Maua Chief Magistrate's Court
Maua CMCC No. 186 of 2014
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Richard Mugaa v Cyrus Muthui Mwaura [2019] KEELC 918 (KLR)", Case Analysis (2019). Application dated 11th February 2019 arising from Maua CMCC No. 186 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/918/eng@2019-11-12

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