In re estate of Peter Muriungi Kaunga (Deceased) [2019] KEELC 2976 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether alternative security in the form of a title deed and a partial cash deposit of Kshs.100,000/- suffices under Order 42 Rule 6
The court declined to accept the title or the Kshs.100,000/- as adequate security for the due performance of the decree
The court reasoned that the Kshs.100,000/= offered would not ultimately suffice as security should the applicant lose the appeal. A land title raises enforcement difficulties: unlike bank collateral, no charge mechanism was proposed to bind the applicant, so a title would not be effective or adequate security. The applicant's potential loss was compensable in monetary damages, removing the basis for stay on altered terms.
Whether the security condition was a procedural technicality curable under Article 159(2)(d)
The court held the deposit for security is a matter of law under Order 42 Rule 6, not a technicality
The applicant had invoked Article 159(2)(d) and (e) of the Constitution to suggest the court should temper the security requirement in the interests of substantive justice. The court rejected this, holding that the requirement to deposit security for the due performance of a decree is pellucidly a matter of law anchored in Order 42 Rule 6(1) and (2) and cannot be sidestepped as a procedural technicality.
Whether the applicant demonstrated sufficient reason for review under Section 80 of the Civil Procedure Act and Order 45
No sufficient reason was demonstrated justifying review of the 16th January 2019 orders
Although counsel cited authorities on the breadth of the 'sufficient reason' ground for review, including Pancras T Swai v Kenya Breweries Ltd and Shanzu Investments Limited v Commissioner for Lands, the court was not persuaded. The applicant's impecuniosity and offer of a title as alternative security did not constitute sufficient reason, as the security requirement is a statutory prerequisite for stay and the proposed alternatives were inadequate.
Legal principles established
#- Deposit for security is not a procedural technicality but a matter of law anchored in Order 42 Rule 6(1) and (2) of the Civil Procedure Rules
- A title to land offered as security for stay of execution does not constitute effective and adequate security
Court orders
#- 1.The application is dismissed
- 2.Costs are awarded to the plaintiff
- Jurisdiction invoked
- Article 159(2)(d) and (e) of the Constitution, Sections 80, 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re estate of Peter Muriungi Kaunga (Deceased) [2019] KEELC 2976 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2976/eng@2019-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.