Esther Wamahiga Ndungu & another v Stephene Kuria Kienje & 6 others [2019] KEELC 3581 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the two-month delay in filing the application amounted to unreasonable delay
No; two months is not unreasonable delay
The court accepted that although the application was not filed immediately after the judgment of 19th December 2018, it was filed within two months, and held that such a delay cannot be characterised as unreasonable under the first prerequisite of Order 42 Rule 6.
Whether the applicants demonstrated substantial loss to justify stay of execution
No; the applicants failed to prove substantial loss
The applicants relied on photographs of felled trees, but these did not show from which parcel the trees had been cut. The 4th respondent admitted cutting only trees he planted in parcel 507 with authority from the area chief and Kenya Forest Service, and those averments were uncontroverted. The applicants did not demonstrate how cutting trees in parcel 507 would cause them substantial loss.
Whether the applicants offered security for the due performance of the decree
The applicants expressed willingness to abide by conditions but did not specifically offer security; the point was moot given failure on substantial loss
The court noted that the applicants expressed willingness to abide by any conditions the court would impose but did not specifically state they were willing to furnish security for due performance of the decree as may ultimately issue against them.
Legal principles established
#- Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal
- The fact that the subject matter of the appeal is land is not, of itself, proof that the applicant will suffer substantial loss
- The applicant bears the evidential burden of proving substantial loss
Court orders
#- 1.The notice of motion dated 4th February 2019 is dismissed with costs to the 1st – 4th plaintiffs/respondents
- On appeal from
- Chief Magistrate's Court, Nyeri
- Nyeri CMCC No. 430 of 2006
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Misera & another v Republic (Criminal Appeal 89 of 2018) [2021] KECA 840 (KLR)[2021] KECA 840 (KLR)19 Mar 2021applied
Cite this brief
#Cite this brief
Caselaw, "Esther Wamahiga Ndungu & another v Stephene Kuria Kienje & 6 others [2019] KEELC 3581 (KLR)", Case Analysis (2019). Nyeri ELCA (Civil Appeal) arising from Nyeri CMCC No. 430 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3581/eng@2019-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.