Obadiah Muruja Mugendi v Charles Kabiti Japhet & 3 others [2019] KEELC 1182 (KLR)
The bottom line
#A Kenyan court refused to pause enforcement of a land judgment because the applicant delayed, offered no security, and lied in his sworn statement.
What this practically means
#Executive summary
#Key legal issues
#Whether the stay application satisfied Order 42 Rule 6 conditions
It did not: there was unreasonable delay, no security was offered, and the notice of appeal was filed out of time
Judgment was delivered on 29 May 2019 and the judgment and proceedings were supplied the same day and on 14 June 2019 respectively, yet the applicant deponed they were availed on 14 August 2019, a falsehood. The notice of appeal was filed on 14 October 2019, over four months later, constituting inordinate delay contrary to Rule 75 of the Court of Appeal Rules. No security for due performance of the decree was offered. All Order 42 Rule 6(2) conditions thus failed.
Candour and clean hands in seeking discretionary relief
The applicant lied on oath about when the judgment and proceedings were availed, disentitling him to discretion
The court's record showed the judgment was supplied on 29 May 2019 and proceedings on 14 June 2019, contradicting the applicant's sworn statement that they were availed on 14 August 2019. The court condemned this as a blatant lie and held that a litigant seeking discretionary orders must come to court with clean hands.
Legal principles established
#- A litigant seeking discretionary orders must come to court with clean hands
- Stay of execution under Order 42 Rule 6 requires no unreasonable delay, substantial loss, and security for due performance of the decree
Court orders
#- 1.The application dated 1st October 2019 is dismissed
- 2.No costs are awarded in the application
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3, 3A, 6 and 63(c) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obadiah Muruja Mugendi v Charles Kabiti Japhet & 3 others [2019] KEELC 1182 (KLR)", Case Analysis (2019). Notice of Motion dated 1st October 2019 (Chuka ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1182/eng@2019-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.