Titus Kahunyoro Mokoh v Risper Akeyo Oginga [2019] KEELC 1861 (KLR)
The bottom line
#A Migori court refused to pause a land judgment on appeal because the losing party showed no real loss and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant/applicant demonstrated substantial loss to justify stay of execution
The defendant failed to demonstrate substantial loss; no evidence of the damages she would suffer was availed
The court found that although the defendant alleged she would suffer substantial loss in the nature and extent of the judgment, she did not avail any evidence showing the damages she would suffer if stay was not granted. Citing Kenya Shell Ltd v Kibiru, the court held that mere assertion of intended execution does not satisfy the substantial loss threshold under Order 42 Rule 6(2).
Whether the application was made without unreasonable delay
The application, filed eighteen days after judgment, was made without unreasonable delay
The court noted that the notice of motion was filed on 30th April 2018, eighteen days after the judgment of 12th April 2018. This promptness satisfied the delay limb of Order 42 Rule 6(2), though it alone could not earn the applicant the stay orders sought.
Whether the defendant offered security for the due performance of the decree
The defendant gave no indication of security for due performance of the decree, rendering the application legally untenable
The court observed that the defendant neither offered nor indicated any security for due performance of the decree as required under Order 42 Rule 6(2)(b). The court agreed with plaintiff's counsel that orders sought in a vacuum are legally untenable, and the absence of security alone justified dismissal of the application.
Legal principles established
#- An applicant for stay of execution under Order 42 Rule 6(2) must satisfy the conditions of substantial loss, absence of unreasonable delay, and provision of security; failure on any ground is fatal
- Grant of stay of existing orders is not a matter of course but rests on genuine conditions, grounds, merit and dispatch
Court orders
#- 1.The defendant's notice of motion dated 30th April 2018 seeking stay of execution of the judgment and decree pending appeal is dismissed
- 2.Costs of the application to the plaintiff
- On appeal from
- Environment and Land Court (judgment of this court delivered 12th April 2018)
- Not stated
- Jurisdiction invoked
- Sections 3A, 1A, 1B, 63(e) of the Civil Procedure Act and Order 42 of the Civil Procedure Rules; Order 42 Rule 6(2) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Titus Kahunyoro Mokoh v Risper Akeyo Oginga [2019] KEELC 1861 (KLR)", Case Analysis (2019). Not stated in the excerpt (Migori ELC matter re LR NO. KAMAGAMBO/KABUORO/1251). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1861/eng@2019-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.