Susan Wanja Mbogo v Josphat Mbogo Kagau [2019] KEELC 3182 (KLR)
The bottom line
#The High Court in Embu refused to block execution of a land decree because the appellant waited over four months and offered no real proof of loss.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant demonstrated substantial loss within the meaning of Order 42 Rule 6(2)(a)
No substantial loss was demonstrated; the claim that the Respondent intended to sell the suit property was a bare assertion not supported by evidence and was controverted by the Respondent's unchallenged replying affidavit.
Apart from the bare statement in the Appellant's affidavit, no evidence showed an intention to dispose of the suit property. The Respondent swore an unchallenged replying affidavit denying any intention to sell, explaining instead that he wished to subdivide the property among himself and his two wives but was blocked by the subsisting caution. The contents of that affidavit were not controverted, so the court found no substantial loss.
Whether the application was filed without unreasonable delay
The application, filed on 15th January 2019 following judgment delivered on 13th September 2018, was made after more than 4 months with no explanation, and therefore failed the delay requirement.
It was common ground that judgment was delivered on 13th September 2018 and the application filed on 15th January 2019, a delay of over four months. The Appellant offered no explanation whatsoever for the delay. The court therefore found and held that the application for stay was not filed without unreasonable delay, failing the second limb of Order 42 Rule 6(2)(a).
The legal effect of a caution vis-à-vis eviction
A caution is not equivalent to an injunction; the removal of a caution does not authorize or relate to eviction, and a party who lodges a caution on another's property can still be evicted without violating the law on cautions.
The court observed that neither possession nor eviction was the subject of the suit before the Magistrate's court, which concerned only removal of the caution lodged by the Appellant. Since a caution merely notifies a claim of interest and is not an injunction, its removal cannot found a claim of eviction, and the Appellant's fears of eviction were legally unfounded in the context of the decree under appeal.
Legal principles established
#- An applicant for stay of execution pending appeal must demonstrate substantial loss, that the application was made without unreasonable delay, and where applicable, provide security for due performance of the decree.
- A caution is not equivalent to an injunction and does not protect the person who lodged it from eviction; removal of a caution has nothing to do with eviction.
Court orders
#- 1.The Notice of Motion dated 15th January 2019 is hereby dismissed with no order as to costs.
- 2.The existing status quo shall be maintained for the next four (4) months only to enable the Appellant prosecute the appeal to its logical conclusion.
- On appeal from
- Siakago Principal Magistrate's Court
- Civil Case No. 63 of 2015
- Jurisdiction invoked
- Order 50 Rule 10 of the Civil Procedure Rules; sections 1A and 3A of the Civil Procedure Act (Cap. 21); Order 42 Rule 6(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Susan Wanja Mbogo v Josphat Mbogo Kagau [2019] KEELC 3182 (KLR)", Case Analysis (2019). Siakago Principal Magistrate Civil Case No. 63 of 2015 (appeal therefrom; Notice of Motion dated 15th January 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3182/eng@2019-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.