David Kimugun Koskei v Benjamin Tuwei & Julius Tuwei (Environment & Land Case 79 of 2014) [2019] KEELC 1010 (KLR)
The bottom line
#A Kenyan High Court granted only a conditional stay of execution because the applicants could not prove they would suffer substantial loss if the judgment was enforced.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was filed without unreasonable delay
The application filed on 3rd May 2019, one month after judgment of 4th April 2019, was within time
The court found the application satisfied the delay limb of Order 42 rule 6 because it was filed before expiry of the 30-day stay granted by the court. The court expressly found the applicants met this provision and moved to the substantial loss limb without further discussion.
Whether the applicants demonstrated substantial loss
No; the applicants produced no evidence of substantial loss
Substantial loss is described as the cornerstone of a stay application. The applicants merely asserted loss without proof. The survey report had been adopted by consent showing the boundaries conformed to the RIM, undermining any claim of irreparable harm. The court therefore declined an unconditional stay.
Whether the respondent's means shifted the evidential burden
Once an applicant alleges inability to refund, the evidential burden shifts to the respondent to disclose resources
Relying on National Industrial Credit Bank Limited as followed by the High Court in Stanley Karanja Wainaina, the court acknowledged the shift of the evidential burden. However here the respondent deponed he was a man of means capable of refunding the decretal sum, and the court structured a conditional stay balancing the parties' rights.
Legal principles established
#- An applicant for stay of execution must show substantial loss, file without unreasonable delay, and offer security for due performance of the decree
- A bare assertion of substantial loss without proof is insufficient
Court orders
#- 1.Kshs. 250,000 awarded as damages be released to the plaintiff within 30 days from the date of the ruling, failure of which the stay lapses
- 2.The applicant is restrained from interfering with the suit land pending the hearing and determination of the intended appeal
- 3.Costs of the application to abide the outcome of the appeal
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kimugun Koskei v Benjamin Tuwei & Julius Tuwei (Environment & Land Case 79 of 2014) [2019] KEELC 1010 (KLR)", Case Analysis (2019). Notice of motion dated 3rd May 2019 (Eldoret High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1010/eng@2019-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.