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ELCDismissedNot stated in the extract· [2019] KEELC 1958 (KLR)

Timothy Atamba Aboki v Elizabeth Mbonne Musa & another [2019] KEELC 1958 (KLR)

Environment and Land Court
30 July 2019
AOA. OMBWAYO
1,795 words in judgment
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The bottom line

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A Kenyan land court refused to pause execution of a judgment because the losing party proved no real loss, offered no security, and had tried to sell the disputed land.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret on a notice of motion dated 23rd May 2018 in which the defendants sought a stay of execution of the judgment delivered on 7th May 2018, which had ordered that the plaintiff be registered as proprietor of 1.5 acres in NANDI/KAMBO/358 and sole proprietor of 2.0 acres in NANDI/KAMBO/1058, and restrained the defendants from interfering with the plaintiff's occupation. The applicants, who had filed a notice of appeal dated 15th May 2018, invoked Order 42 Rule 6 of the Civil Procedure Rules, contending that their appeal had a high chance of success, that they would suffer irreparable loss, and that the appeal would be rendered nugatory if stay was refused. The respondent opposed the application, submitting that no substantial loss had been demonstrated, that no appeal had been filed, that there was unreasonable delay, that the applicants had not offered security, and that the applicants had breached a consent order of 6/4/2011 conserving the suit property by selling part of the land, evidenced by annexures on record. The court framed the sole issue as whether the applicants had satisfied Order 42 Rule 6. Applying Butt v Rent Restriction Tribunal, James Wangalwa v Agnes Naliaka Cheseto, Machira v East African Standard (No 2) and Tassam Logistics, the court held that substantial loss had not been demonstrated, that the applicants' proven attempts to sell part of the suit land showed unclean hands, and that the casual treatment of security, absent any valuation report, was fatal. The application was dismissed with costs to the respondent on 30th July 2019.

Key legal issues

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01

Substantial loss under Order 42 Rule 6(2)

Holding

The applicants' mere apprehension that the subject land may be obliterated did not demonstrate substantial loss; execution or threatened execution is not by itself substantial loss

Reasoning

Relying on James Wangalwa & Anor v Agnes Naliaka Cheseto and Machira t/a Machira & Co. Advocates v East African Standard (No 2), the court held that an applicant must prove specific details and particulars of loss; where no pecuniary or tangible loss is shown, stay will not issue. The applicants did not demonstrate how they would suffer substantial loss.

p. 2
02

Unclean hands and conduct of the applicant

Holding

The applicant's proven attempts to sell part of the suit land meant she had not come to court with clean hands, and the respondent would suffer irreparable loss if the appeal failed

Reasoning

The respondent showed, through annexure TAA1 to the replying affidavit and supporting annexures, that the applicant had begun selling part of the suit land in breach of the consent order of 6/4/2011 conserving the suit property. This conduct weighed against the grant of discretionary stay relief.

p. 2
03

Security for the due performance of the decree

Holding

The applicant gave no concrete offer of security, and absent a valuation report the court could not determine the amount; casual treatment of security was fatal to the application

Reasoning

Although the applicant deponed willingness to abide by any order on security, she did not state what would be provided. Without a valuation report of the suit land, the court could not determine an appropriate amount. Security is a crucial element of Order 42 Rule 6 and its casual treatment justified refusal of the discretion.

p. 3

Legal principles established

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  • An applicant for stay of execution must demonstrate substantial loss, file the application without unreasonable delay, and offer security; mere apprehension about the fate of the subject matter is insufficient
  • A party seeking stay of execution must come to court with clean hands and address the question of security seriously

Court orders

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  1. 1.The notice of motion dated 23rd May 2018 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and 6(2)

Cases cited (8)

  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • James Wangalwa & Anor v Agnes Naliaka Cheseto
    2012 (eKLR)
  • Silverstein vs. Chesoni
    [2002] KLR 867
  • Machira t/a Machira & Co. Advocates vs. East African Standard (No 2)
    (2002) KLR 63
  • Elena D. Korir v Kenyatta University
  • Tassam Logistics Ltd v David Macharia & Another
    [2018] eKLR
  • Tabro Transporters Ltd –vs- Absalom Dova Lumbasi
    [2012] eKLR
  • Wilson v Church (No 2)
    12 Ch. D (1879) 454
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "Timothy Atamba Aboki v Elizabeth Mbonne Musa & another [2019] KEELC 1958 (KLR)", Case Analysis (2019). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1958/eng@2019-07-30

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