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ELCDismissedUnavailable (not stated in the judgment)· [2019] KEELC 1877 (KLR)

Solomon Odira Okello Fridah & another v Esther Laboso [2019] KEELC 1877 (KLR)

High Court of Kenya
31 July 2019
MOM.A. Odeny
1,465 words in judgment
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The bottom line

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The High Court in Eldoret refused to pause execution of an eviction decree because the applicant filed late, proved no specific loss, and disobeyed earlier court orders.

What this practically means

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Executive summary

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This ruling by M.A. Odeny J at the High Court in Eldoret disposed of a notice of motion dated 27th March 2019 by the defendant seeking stay of execution of a judgment and decree issued on 24th January 2019, by which she was given 60 days to vacate the suit property, pending an intended appeal to the Court of Appeal. Counsel for the applicant argued that she had filed a notice of appeal, annexed an 11-ground memorandum of appeal, and stood to suffer irreparable loss and render the appeal nugatory if evicted. The respondents opposed, contending that she had breached a status quo order by ploughing the land, had come to equity with unclean hands, occupied the land having been settled there by a Chief after the 2008 post-election violence, and that the land had been fully paid for by the 2nd plaintiff. The court set out the three Order 42 Rule 6 conditions: substantial loss, absence of unreasonable delay, and security for due performance of the decree. It found the application, filed two days before the 60-day deadline expired, was unreasonably delayed; that mere occupation was insufficient proof of substantial loss, citing Charles Wahome Gethi and Machira; and that the applicant's disobedience of the status quo order disqualified her from equitable relief and undermined confidence she would comply with conditions. Stay was accordingly refused, but the plaintiff was barred from disposing of the suit land pending the appeal upon depositing the title deed in court, with costs in the cause.

Key legal issues

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01

Timeliness of the application for stay

Holding

The application, filed two days before expiry of the 60-day period given to vacate, was unreasonably delayed; a dissatisfied litigant should file immediately

Reasoning

Judgment was delivered on 24th January 2019 with 60 days given to vacate. The application was filed on 28th March 2019, two days before the deadline. The court held that if the applicant was dissatisfied with the judgment, the stay application should have been filed immediately, and answered the timeliness question in the negative.

p. 2
02

Substantial loss and clean hands

Holding

Mere occupation of the suit land does not establish substantial loss, and breach of the status quo orders disqualified the applicant from equitable discretion

Reasoning

The applicant claimed she would suffer irreparable loss if evicted, but the court, following Charles Wahome Gethi, held that residence alone is insufficient proof of substantial loss. Further, having breached the status quo order by ploughing the land, the applicant came to equity with unclean hands, which weighed against exercising the court's discretion in her favour.

p. 2
03

Security for due performance of the decree

Holding

Because the applicant had disobeyed the status quo order, the court could not be satisfied she would abide by discretionary conditions, and no security had been given

Reasoning

Order 42 Rule 6 requires security for due performance of the decree. The applicant offered none, and her prior disobedience of the status quo order left the court unable to trust that she would abide by any conditions it imposed. This limb also failed, leading to dismissal of the application.

p. 2

Legal principles established

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  • It is not enough for an applicant for stay to claim residence on the suit land as substantial loss; the applicant must show the specific substantial loss to be suffered
  • Where no pecuniary or tangible loss is shown, the court will not grant a stay of execution
  • A party seeking equity must come with clean hands and obey court orders

Court orders

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  1. 1.Application for stay of execution dismissed - the plaintiff may proceed with execution of the decree
  2. 2.In the interest of justice, the substratum of the case preserved by barring the plaintiff from disposing of the suit land pending hearing and determination of the case, upon depositing the title deed to the suit land in court
  3. 3.Costs of the application in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (3)

  • Antoine Ndiaye vs. African Virtual University
    [2015] eKLR, Civil Suit No. 422 of 2006
  • Charles Wahome Gethi vs. Angela Wairimu Gethi
    Civil Application No. NAI 302 of 2007 UR 205/2007
  • Machira t/a Machira & Co. Advocates vs. East African Standard (No 2)
    (2002) KLR 63
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Solomon Odira Okello Fridah & another v Esther Laboso [2019] KEELC 1877 (KLR)", Case Analysis (2019). Unavailable (not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1877/eng@2019-07-31

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