Kiao Water Project (sued through Ibrahim Baariu (Chairman), Miriti M’ikenda (Secretary) and Josphat Kiriinya (Treasurer) v Joseph Mukaria Mungania & another [2019] KEELC 2250 (KLR)

Environment and Land Court

31 July 2019

LMLucy N. Mbugua

1,671 words in judgment

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The bottom line

Kenya's Environment and Land Court paused a water project's judgment debt because appealing parties who move quickly, show real loss, and offer security can get a stay of execution.

What this practically means

Executive summary

This was a notice of motion dated 16th May 2019 by Kiao Water Project, sued through its chairman, secretary and treasurer, seeking a stay of execution of the judgment and decree in Maua CMCC No. 295 of 2015 delivered on 21st January 2019 by Hon. J. Wang'ang'a in favour of Joseph Mukaria Mungania and Julius Githinji Murachia, pending the hearing and determination of Meru ELC Appeal No. 37 of 2019. The applicant argued that the appeal raised the issue of jurisdiction, contending that the magistrate who heard the suit was not gazetted, that the respondents had not received water from the applicant for over six and eleven years respectively, and that the respondents had vandalised water pipes and threatened to poison the water, matters reported to the police. The respondents opposed, arguing the applicant had not disclosed that a similar application had been rejected by the trial court, that no substantial loss was shown since the applicant would connect and charge for the water, and that no security had been offered. Applying Section 42(6) of the Civil Procedure Act and the principles in Canvass Manufacturers Ltd v Stephen Reuben Karunditu and Stephen Wanjohi v Central Glass Industries Ltd, the court found sufficient cause established, held the delay was not inordinate, and noted the applicant's readiness to offer security. The court granted the stay of execution pending appeal, ordered the applicant to deposit Kshs. 70,000 as security within 30 days failing which the stay would lapse, limited the stay to one year, and directed that costs of the application abide the outcome of the appeal.

Key legal issues

Conditions for grant of stay of execution pending appeal

Holding

The court found the applicant had established sufficient cause and that any delay was not inordinate, and granted stay conditioned on security.

Reasoning

The court applied Section 42(6) of the Civil Procedure Act and the authorities of Canvass Manufacturers Ltd v Stephen Reuben Karunditu and Stephen Wanjohi v Central Glass Industries Ltd, which require sufficient cause, substantial loss, no unreasonable delay and security. It found the respondents' lack of water services for over six years unchallenged, took seriously the police reports of vandalism and threats, found the delay not inordinate, and noted the applicant's readiness to offer security.

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Legal principles established

A court's discretion to grant a stay of execution must be exercised judicially, considering arguable appeal and whether the appeal would be rendered nugatory.
For a stay of execution to issue, the applicant must show sufficient cause, substantial loss, no unreasonable delay and offer security.

Court orders

1.An order of stay of execution restraining the execution of the judgment and decree in Maua CMCC No. 295 of 2015 and all subsequent/consequential orders pending the hearing and determination of the appeal
2.The applicant to deposit Kshs. 70,000 in court as security for costs within 30 days of delivery of the ruling, failing which the order of stay shall lapse
3.The stay granted to last for a period of 1 year
4.Costs of the application to abide the outcome of the appeal

Authorities

Legislation

Civil Procedure ActSection 42(6) (order for stay of execution)

Cases cited (2)

Canvass Manufacturers Ltd Vs Stephen Reuben Karunditu
Civil Application No.158 of 1994, (1994) LLR 4853
Stephen Wanjohi Vs Central Glass Industries Ltd
Nairobi HCC No.6726 of 1991

On appeal from: Magistrates' Court at Maua; Maua CMCC No. 295 of 2015
Jurisdiction invoked: Section 42(6) of the Civil Procedure Act (stay of execution pending appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kiao Water Project (sued through Ibrahim Baariu (Chairman), Miriti M’ikenda (Secretary) and Josphat Kiriinya (Treasurer) v Joseph Mukaria Mungania & another [2019] KEELC 2250 (KLR)", Case Analysis (2019). ELC Appeal 37 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2250/eng@2019-07-31

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