Lydia Chepchirchir Koskei v Justus Achuka Omenyo [2019] KEELC 2147 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The court was satisfied that the appellant would suffer substantial loss as the orders appealed from had the effect of evicting her from the suit property before the suit and appeal were concluded
The subordinate court had granted a restraining and mandatory injunction in respect of the suit property. The appellant demonstrated that the orders would result in her eviction before the pending suit was concluded and before the appeal was determined. The court held this would constitute substantial loss sufficient to warrant stay under Order 42 rule 6.
Unreasonable delay
The application filed 14 days after the ruling was delivered involved no unreasonable delay
The appellant filed the Memorandum of Appeal on 27th September 2018 following the ruling of 14th September 2018, and the present application followed. Filing 14 days after the ruling was held not to constitute unreasonable delay under Order 42 rule 6(2)(a).
Whether the application was overtaken by events
The claim that the appellant had vacated the suit property was beside the point; it sufficed that the orders would effect eviction before conclusion of the suit and appeal
The respondent argued the appellant had vacated and her structures demolished, so there was nothing to stay. The court held that at that point the issue was immaterial, since the orders as made would still have the effect of evicting the appellant before the suit and appeal were concluded, which amounted to substantial loss.
Legal principles established
#- Substantial loss is the cornerstone for granting a stay of execution
- Orders that have the effect of evicting an applicant from suit property before the suit and appeal are concluded constitute substantial loss
Court orders
#- 1.Stay of execution of the ruling and order made on 14th September 2018 in Nakuru CMCC No. 1047 of 2018 pending the hearing and determination of the appeal
- 2.The stay order to remain in force for a period of 18 (eighteen) months only from the date of the ruling, unless otherwise ordered by the court
- 3.Costs of the Notice of Motion dated 28th September 2018 to be in the appeal
- On appeal from
- Chief Magistrate's Court at Nakuru
- Nakuru CMCC No. 1047 of 2018
- Jurisdiction invoked
- Order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lydia Chepchirchir Koskei v Justus Achuka Omenyo [2019] KEELC 2147 (KLR)", Case Analysis (2019). Nakuru CMCC No. 1047 of 2018 (Notice of Motion dated 28th September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2147/eng@2019-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.