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ELCAllowedNot stated in excerpt· [2019] KEELC 3433 (KLR)

Caroline Cherono Kirui v Liner Cherono Towet [2019] KEELC 3433 (KLR)

Environment and Land Court
15 May 2019
1,295 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who loses at trial can freeze the judgment while appealing, but only if she moves fast, shows real loss, and deposits security.

What this practically means

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Executive summary

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This is a ruling by D. O. Ohungo, Judge of the Environment and Land Court at Nakuru, delivered on 15th May 2019 on a Notice of Motion dated 8th August 2018 by the defendant seeking stay of execution of the court's judgment of 13th July 2018 pending appeal to the Court of Appeal. The judgment had granted specific performance compelling the defendant to perform her obligations under an Agreement for Sale dated 20th March 2012, ordered her to excise and transfer 0.404 Hectares from parcel No. Njoro/Ngata Block 2/2807(Kirobon) to the plaintiff, extended time for Land Control Board consent by six months, provided for execution of documents by the Deputy Registrar in default, directed payment of the KShs 50,000 balance of purchase price upon issuance of title, and awarded the plaintiff costs. The defendant filed Notice of Appeal on 17th July 2018 and the stay application within a month. Applying Order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010 and the principles in Kenya Shell Limited v Benjamin Karuga Kibiru & another, the court found no unreasonable delay, that an appeal had been filed, and that substantial loss was manifest because the defendant would lose the 0.404 Hectares portion if execution proceeded. The applicant offered security, which the court fixed as deposit of taxed costs into a joint interest-earning account of the parties' advocates within 30 days, failing which the stay automatically lapses. The stay was limited to two years to ensure active prosecution of the appeal. Costs of the application were awarded to the plaintiff.

Key legal issues

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01

Whether the applicant satisfied the conditions for stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules, 2010

Holding

Yes - the application was filed within a month of judgment (no unreasonable delay), an appeal had been filed, substantial loss was evident because the plaintiff stood to take 0.404 Hectares of the defendant's land, and the applicant was ready to provide security by depositing taxed costs.

Reasoning

The court applied Order 42 rule 6(1) and (2) and the Kenya Shell test. Delay was minimal, an appeal was on file. On substantial loss, the court looked at the nature of the judgment orders: specific performance compelling excision and transfer of 0.404 Hectares meant the defendant would lose land if execution proceeded, which is substantial loss even if not specifically deponed to. The applicant offered security, which the court fixed as payment of taxed costs into an interest-earning account, with the stay limited to two years to ensure the appeal is prosecuted.

p. 2
02

Whether the stay should be granted unconditionally and indefinitely

Holding

No - security in the form of deposit of taxed costs into a joint interest-earning account was imposed, with automatic vacation of the stay in default, and the stay limited to two years to ensure active prosecution of the appeal.

Reasoning

The court found security necessary under Order 42 rule 6(2)(b) and used its discretion to tether the stay: the applicant had stated readiness to provide security, so the court ordered deposit of taxed costs in a joint interest-earning account within 30 days, default triggering automatic vacation. To ensure the appeal is actively prosecuted, the stay was limited to two years unless extended.

p. 2

Legal principles established

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  • A litigant seeking stay pending appeal must show substantial loss, absence of unreasonable delay, filing of an appeal, and offer of security; substantial loss may be manifest from the nature of the orders in the judgment even if not specifically pleaded.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 13th July 2018 and the resultant decree pending hearing and determination of the defendant's appeal to the Court of Appeal, remaining in force for only two years from the date of the ruling unless extended
  2. 2.The defendant to deposit the party and party costs for the case into an interest earning account in the joint names of the advocates on record for the plaintiff and defendant within 30 days of determination or agreement, failing which the stay shall automatically stand vacated
  3. 3.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6(1) and (2)
  • Civil Procedure Rules, 2010Order XLI rule 4 (as referenced in the cited case)

Cases cited (1)

  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
Jurisdiction invoked
Order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010 - jurisdiction of the trial court to stay its own decree pending appeal

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, "Caroline Cherono Kirui v Liner Cherono Towet [2019] KEELC 3433 (KLR)", Case Analysis (2019). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3433/eng@2019-05-15

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