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ELCDismissedNot stated in the extract (application dated 15th April 2019 arising from Nyahururu Chief Magistrate's Court Civil Suit No. 256 of 2006)· [2019] KEELC 1389 (KLR)

Kenya Power and Lighting Co Ltd v Kigaita Ngare Unduthu & 51 others [2019] KEELC 1389 (KLR)

Environment and Land Court
15 October 2019
2,558 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause payment of a Ksh 10 million-plus judgment because losing money on a money decree is not 'substantial loss'.

What this practically means

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Executive summary

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The Applicant, a party aggrieved by the judgment and decree of the Nyahururu Chief Magistrate's Court in Civil Suit No. 256 of 2006 delivered on 14th March 2019, in which it was ordered to pay each of 36 Respondents Ksh 300,000 (exceeding Ksh 10,000,000 in total), moved the Environment and Land Court at Nyahururu by Notice of Motion dated 15th April 2019 under Sections 1A, 1B, 3A and 79G of the Civil Procedure Act and Order 42 Rules 6 and 7 of the Civil Procedure Rules, seeking stay of execution pending appeal. The Applicant argued it had satisfied the three conditions in Order 42 Rule 6(2): substantial loss (since the Respondents had no demonstrated financial capacity to refund the decretal sum if the appeal succeeded), absence of undue delay, and willingness to deposit security. The Respondents opposed, contending that monetary loss is not substantial loss, that they own the suit land with sources of income, and that the Applicant was adjudged a trespasser. The court restated the three conditions for stay and the overriding objective. It held that the pleaded loss was purely monetary and did not amount to substantial loss; the Respondents own land and could refund the decretal sum, poverty not being a ground for denying a litigant the fruits of judgment. The application was found to be filed without undue delay, but with no substantial loss established, the security issue was academic. The application was dismissed with costs to the Respondents, with directions to lodge the appeal within 14 days and file the record of appeal within 45 days thereafter.

Key legal issues

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01

Substantial loss under Order 42 Rule 6(2)(a)

Holding

The Applicant's pleaded loss of over Ksh 10,000,000 was monetary loss capable of being quantified and refunded, and did not amount to substantial loss; the Respondents own land and have sources of income

Reasoning

The court adopted the Mukuma v Abuoga and Kenya Shell v Kibiru formulations that substantial loss is what has to be prevented by preserving the status quo. The decretal sum of over Ksh 10,000,000 was to be shared among 36 Respondents who own land and therefore have sources of income and could refund the sum if the appeal succeeded. The court noted it is not its duty to deny successful litigants the fruits of their judgment.

p. 3
02

Whether the application was brought without unreasonable delay

Holding

The application was filed on 15th April 2019, the day the 45-day stay granted by the trial court lapsed, and was therefore brought without undue delay

Reasoning

The court perused the record and found judgment was delivered on 14th March 2019; the Applicant obtained stay in the trial court and filed the present application on 15th April 2019 when that stay lapsed. This second condition was satisfied.

p. 3
03

Provision of security for due performance of the decree

Holding

Although the Applicant expressed willingness to furnish security, having found no substantial loss, the issue of security was not applicable since a stay order would serve no purpose

Reasoning

The Applicant had undertaken to deposit reasonable security as the court might determine, which would have addressed the Respondents' concern about due performance. However, because the court had already found no substantial loss, the stay could not be granted, rendering the security question academic.

p. 3

Legal principles established

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  • Mere monetary loss on a money decree does not constitute substantial loss for purposes of stay of execution under Order 42 Rule 6(2)
  • Poverty or lesser means of a decree-holder is not a ground for denying a person the right to enjoy the fruits of their judgment
  • Financial ability of a decree-holder alone is not a reason for allowing stay; it is enough that the decree-holder is not a dishonourable miscreant without any form of income
  • In exercising the discretion on stay, courts should apply the overriding objective and opt for the lower rather than the higher risk of injustice

Court orders

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  1. 1.The Applicant/Appellant's Notice of Motion dated 15th April 2019 is denied and dismissed with costs to the Respondents
  2. 2.The Appellant/Applicant shall lodge his Appeal against the decree of the lower Court within 14 days from that date
  3. 3.Upon filing of the memorandum of appeal, the Applicant shall prepare, file and serve his record of appeal within 45 days

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 79G
  • Civil Procedure RulesOrder 42 Rules 6 and 7
  • Evidence ActSection 112

Cases cited (8)

  • Focin Motorcycle Co. Ltd vs Ann Wambui Wangui & Another
    [2018] eKLR
  • Stanley Karanja Wainina & Another vs Ridon Anyangu Mutubwa
    [2016] eKLR
  • House Finance Company of Kenya vs Sharok Kher Mohamed Ali Hirji & Another
    [2015] eKLR
  • Amal Hauliers Limited vs Abdulnasir Abukar Hassan
    [2017] eKLR
  • Hassan Mohamed Haji vs Mohamed Keynan & Another
    [2019] eKLR
  • Mukuma V Abuoga
    (1988) KLR 645
  • Kenya Shell Limited vs. Kibiru
    [1986] KLR 410
  • Stephen Wanjohi vs. Central Glass Industries Ltd
    Nairobi HCCC No. 6726 of 1991
On appeal from
Nyahururu Chief Magistrate's Court
Civil Suit No. 256 of 2006
Jurisdiction invoked
Sections 1A, 1B, 3A and 79G of the Civil Procedure Act; Order 42 Rules 6 and 7 of the Civil Procedure Rules (appellate jurisdiction over subordinate court decree)

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, "Kenya Power and Lighting Co Ltd v Kigaita Ngare Unduthu & 51 others [2019] KEELC 1389 (KLR)", Case Analysis (2019). Not stated in the extract (application dated 15th April 2019 arising from Nyahururu Chief Magistrate's Court Civil Suit No. 256 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1389/eng@2019-10-15

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