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ELCDismissedNot stated on record (associated with Appeal No 54 of 2018, Court of Appeal, Kisumu)· [2019] KEELC 2842 (KLR)

Julius Wepukhulu Saratuki v Kamusinde Farmers Co-operative Society [2019] KEELC 2842 (KLR)

Environment and Land Court of Kenya
27 June 2019
BOBoaz N. Olao
1,377 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by Boaz N. Olao J at Bungoma deals with a Notice of Motion dated 4th December 2018 by the defendant seeking a stay of execution of a decree arising from a judgment of Mukunya J ordering the defendant to vacate land parcel NO KIMILILI/KAMUKUYWA/409. The application, brought under Section 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, was premised on the defendant's pending appeal, Appeal No 54 of 2018 at the Court of Appeal at Kisumu. The plaintiff opposed, contending the application failed the Order 42 Rule 6 threshold, that no loss was demonstrated, no security offered, and that there was inordinate delay. Applying Order 42 Rule 6(1) and (2), the court identified four requirements: sufficient cause, no unreasonable delay, substantial loss, and security. The court held that the ten-month delay between delivery of judgment (in the presence of both counsel) and filing of the application was unreasonable and unexplained, and that the relevant delay is measured from the order to the filing of the application, not from filing to hearing. On substantial loss, relying on Kenya Shell Ltd v Benjamin Karuga, the court held that loss must be demonstrated, not merely alleged; the execution was against taxed costs, a monetary decree, and a stay cannot be granted in respect of costs, citing Francis Kabaa v Nancy Wambui as submitted by the plaintiff. The application was dismissed with costs on 27th June 2019.

Key legal issues

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01

Unreasonable delay in filing the stay application

Holding

The application filed ten (10) months after judgment was delivered in the presence of both counsel was unreasonably delayed and unexplained; on this ground alone the application merited dismissal.

Reasoning

The judgment was delivered in the presence of counsel for both parties, so the defendant knew of it on the day of delivery. The application was filed on 4th December 2018, ten months later, and the only explanation offered related to the court's hearing schedule, which is irrelevant. The court distinguished between delay in filing and delay in hearing, holding only the former is material under Order 42 Rule 6(2).

p. 2
02

Substantial loss

Holding

The defendant failed to demonstrate the substantial loss it would suffer; what was being executed were taxed costs, and a monetary decree is not normally rendered nugatory by payment.

Reasoning

Applying Kenya Shell Ltd v Benjamin Karuga, substantial loss is the cornerstone for granting a stay and must be evidenced, not merely alleged. The proclamation attached showed execution was for taxed costs, a monetary decree. The defendant did not demonstrate the plaintiff's impecunity such that costs paid out could not be refunded if the appeal succeeded.

p. 2

Legal principles established

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  • The delay relevant under Order 42 Rule 6(2) is the delay between the delivery of the order/judgment and the filing of the application for stay, not the delay in hearing the application once filed.
  • It is not enough to allege substantial loss; the applicant must demonstrate the loss it would suffer.
  • A stay of execution cannot be granted in respect of costs.

Court orders

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  1. 1.The defendant's Notice of Motion dated 4th December 2018 is dismissed
  2. 2.Costs of the application to the plaintiff
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 42 Rule 6 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, "Julius Wepukhulu Saratuki v Kamusinde Farmers Co-operative Society [2019] KEELC 2842 (KLR)", Case Analysis (2019). Not stated on record (associated with Appeal No 54 of 2018, Court of Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2842/eng@2019-06-27

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