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ELCPartially AllowedNotice of motion dated 3rd May 2019 (Eldoret High Court)· [2019] KEELC 1010 (KLR)

David Kimugun Koskei v Benjamin Tuwei & Julius Tuwei (Environment & Land Case 79 of 2014) [2019] KEELC 1010 (KLR)

High Court of Kenya
2 October 2019
1,294 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling on a notice of motion dated 3rd May 2019 by the defendants seeking stay of execution of a judgment delivered on 4th April 2019, pending an intended appeal, under Order 42 rule 6 of the Civil Procedure Rules. The underlying judgment had found the defendants in trespass over parcels SOY/KAPSANG BLOCK 5 (ZIWA) 184 and SOY/KAPSANG BLOCK (ZIWA) 128, awarding the plaintiff general damages of Kshs. 250,000 plus costs. The applicants argued they filed timeously and would suffer substantial loss; the respondent, through Mr. Keter, countered that a notice of appeal confers no stay, that the applicants proved no substantial loss and offered no security, and that he was a man of means able to refund the decretal sum. The court, M. A. Odenty J, found the delay limb satisfied but held that substantial loss, the cornerstone of a stay application, was not proved: a bare assertion without proof is insufficient. Noting the survey report had been adopted by consent confirming the boundaries conformed to the Registry Index Maps, and balancing the successful litigant's right to enjoy the fruits of judgment against the aggrieved party's right to appeal, the court ordered the Kshs. 250,000 released to the plaintiff within 30 days failing which the stay lapses, restrained the applicants from interfering with the suit land pending the appeal, and directed that costs of the application abide the appeal. The application was therefore partially allowed on conditional terms.

Key legal issues

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01

Whether the application was filed without unreasonable delay

Holding

The application filed on 3rd May 2019, one month after judgment of 4th April 2019, was within time

Reasoning

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.

p. 2
02

Whether the applicants demonstrated substantial loss

Holding

No; the applicants produced no evidence of substantial loss

Reasoning

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.

p. 2
03

Whether the respondent's means shifted the evidential burden

Holding

Once an applicant alleges inability to refund, the evidential burden shifts to the respondent to disclose resources

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.The applicant is restrained from interfering with the suit land pending the hearing and determination of the intended appeal
  3. 3.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6

Cases cited (4)

  • Reliance Bank v. Norlake Investments Ltd
    (2002) 1 EA 227
  • Abok James Odera T/A A.J Odera & Associates vs John Patrick Macharia T/A Machira & Co. Advocates
    Civil Application Number NAI 28 0/2002 (UR)
  • National Industrial Credit Bank Limited
  • Stanley Karanja Wainaina & another v Ridon Anyangu Mutubwa
    [2016] eKLR
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules

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, "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.