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ELCDismissedNot stated in the excerpt (Migori ELC matter re LR NO. KAMAGAMBO/KABUORO/1251)· [2019] KEELC 1861 (KLR)

Titus Kahunyoro Mokoh v Risper Akeyo Oginga [2019] KEELC 1861 (KLR)

Environment and Land Court
9 July 2019
1,232 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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By a plaint filed 13th April 2016, the plaintiff successfully sued the defendant over the aborted sale of LR NO. KAMAGAMBO/KABUORO/1251, and on 12th April 2018 judgment was entered in his favour, with the plaintiff ordered to pay Kshs. 70,000/- being part of the consideration, and each party bearing its own costs. Aggrieved, the defendant filed a notice of appeal and thereafter a notice of motion dated 30th April 2018 under Sections 3A, 1A, 1B and 63(e) of the Civil Procedure Act and Order 42 of the Civil Procedure Rules, seeking stay of execution of the judgment and decree pending her appeal to the Court of Appeal at Kisumu. She contended that the appeal was arguable and would be rendered nugatory, and that the application was made promptly. The plaintiff opposed, asserting the application failed to meet the threshold in Order 42 Rule 6(2) and was designed to delay realization of the fruits of the judgment. Parties canvassed the motion by written submissions. The court, framed two issues: whether the conditions for stay were met, and whether the applicant was entitled to the orders. It found the application was filed within eighteen days and was thus not delayed, but that the defendant failed to demonstrate substantial loss and offered no security for due performance of the decree. The court dismissed the application with costs to the plaintiff on 9th July 2019.

Key legal issues

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01

Whether the defendant/applicant demonstrated substantial loss to justify stay of execution

Holding

The defendant failed to demonstrate substantial loss; no evidence of the damages she would suffer was availed

Reasoning

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).

p. 2
02

Whether the application was made without unreasonable delay

Holding

The application, filed eighteen days after judgment, was made without unreasonable delay

Reasoning

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.

p. 2
03

Whether the defendant offered security for the due performance of the decree

Holding

The defendant gave no indication of security for due performance of the decree, rendering the application legally untenable

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to the plaintiff

Authorities

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Legislation

  • Civil Procedure ActSections 3A, 1A, 1B, 63(e)
  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Oaths and Statutory Declaration RulesRule 9

Cases cited (7)

  • Patani and another v Patani
    (2003) KLR 518
  • Bob Morgan Systems Limited and another v Jones
    (2004) eKLR
  • Joseph Gachie t/a Joska Metal Works v Simon Ndeti Muema
    (2012) eKLR
  • Kenya Shell Ltd v Kibiru and another
    (1986) eKLR
  • Francis A. Mbalanya v Cecilia N. Waema
    (2017) eKLR
  • Blue Shield Insurance Company Ltd v Mahinda
    (2009) KLR 551 at 561
  • Malindi Law Society of Kenya v Law Society of Kenya Nairobi Branch and 5 others
    Civil Application number 20 of 2017, (2017) eKLR
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

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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, "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.