Charles Odhiambo Kasera & another v Salome Nafula Richard [2019] KEELC 3398 (KLR)
The bottom line
#A Kenyan court refused to halt enforcement of a judgment and protect land title, because the applicants waited a year and showed no real risk of harm.
What this practically means
#Executive summary
#Key legal issues
#Stay of execution pending appeal
Refused; the Applicants failed to establish sufficient cause, substantial loss, absence of unreasonable delay and security
The judgment under appeal dismissed the Applicants' eviction suit and granted only a negative order which cannot be stayed. Further, the application was filed one year after judgment with no explanation for the delay, and the Applicants did not demonstrate what substantial loss they would suffer since their title remains uncancelled and they remain registered proprietors.
Injunction pending appeal
Refused; the application was founded on mere apprehension without concrete evidence
Applying the principles in Giella v Cassman Brown and the criteria in Patricia Njeri v National Museum of Kenya, the Court held that since the suit land remains registered in the Applicants' names, the Defendant cannot lease, transfer or dispose of it without the title. The claimed 'underhand dealings' were speculative, so no irreparable harm or prima facie case was shown.
Legal principles established
#- Substantial loss is the cornerstone of an application for stay of execution pending appeal
- A negative order which is incapable of execution save in respect of costs only cannot be stayed
- An application for stay pending appeal must be made without unreasonable delay
Court orders
#- 1.The plaintiffs/Applicants' Notice of Motion dated 11th February 2019 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Order 42 Rule 6(1), (2) and (6) and Orders 40 Rules 1(a)(b) and 2(1) and (2) of the Civil Procedure Rules; Sections 1, 1B, 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Odhiambo Kasera & another v Salome Nafula Richard [2019] KEELC 3398 (KLR)", Case Analysis (2019). Notice of Motion dated 11th February 2019 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3398/eng@2019-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.