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ELCOtherNot stated in extract ( judgment and decree of 22nd September 2017 in original suit)· [2019] KEELC 3629 (KLR)

Ann Mumbi Hinga v William Mwangi Gathuma & another [2019] KEELC 3629 (KLR)

Environment and Land Court
30 April 2019
SOS. Okong'o
1,599 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi land court blocked transfer of a disputed property pending appeal, but only partially, and only if Kshs.1 million security was deposited within 30 days.

What this practically means

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Executive summary

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Following a judgment delivered on 22nd September 2017 dismissing the plaintiff's claim and allowing the defendants' counter-claim - ordering transfer of L.R No. 18096 (or, in the alternative, excision and transfer of 1 acre from L.R No. 3994/11), issuing a permanent injunction restraining the plaintiff from breaching the sale agreement or interfering with the defendants' possession, and awarding costs to the defendants - the plaintiff filed a notice of intention to appeal and moved the court by Notice of Motion dated 16th October 2017 for stay of execution pending the intended appeal to the Court of Appeal. She relied on the familiar conditions of arguability, substantial loss, absence of delay and willingness to give security, contending that transfer of the property would render the appeal nugatory. The defendants opposed, arguing she had not met the conditions for stay, had suffered no loss since they had paid the full purchase price and been in possession since 2003, and that the judgment was incapable of being stayed because staying it would effectively revive her dismissed claim. Applying Order 42 Rule 6(2) and the principles in Northwood Services v Mac & More Solution Ltd., the court held that only the transfer orders were capable of being stayed, as staying the dismissal, declaration and injunction would give the plaintiff what the judgment denied her. Finding substantial loss in the risk of the property being disposed of to third parties, no unreasonable delay, and an offer of security, the court allowed the application partially and conditionally: stay limited to paragraphs 3, 4 and 7 of the decree for 24 months or until determination of the appeal, on deposit of Kshs.1,000,000 as security within 30 days, with costs in the cause.

Key legal issues

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01

Conditions for stay of execution under Order 42 Rule 6(2)

Holding

The plaintiff satisfied substantial loss, absence of unreasonable delay and security, entitling her to a partial and conditional stay

Reasoning

The court applied the three statutory conditions in Order 42 Rule 6(2): substantial loss, application made without unreasonable delay, and security. It found substantial loss because transfer of the suit property could place it beyond the plaintiff's reach if the appeal succeeded, and the defendants gave no evidence of ability to compensate at the asserted market value of Kshs.40 million. The application was filed within one month of judgment, and the plaintiff undertook to abide by any security conditions. However, only the transfer orders were capable of being stayed.

p. 2
02

Whether the judgment was capable of being stayed in full

Holding

No - the dismissal of the suit, the declaration against rescission and the permanent injunction could not be stayed; only the transfer orders could

Reasoning

The court accepted the defendants' argument that staying certain reliefs would either prejudice them or give the plaintiff what the judgment denied her, defeating the preservation purpose of a stay. It therefore limited the stay to the orders directing transfer of L.R No. 18096 (or excision of 1 acre from L.R No. 3994/11), leaving the dismissal, declaration and injunction operative.

p. 2

Legal principles established

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  • The purpose of a stay of execution pending appeal is to preserve the subject matter of the suit so that a successful appeal is not rendered nugatory, balanced against the successful litigant's right to enjoy the fruits of the judgment
  • Not every relief in a decree is capable of being stayed; a stay cannot grant the applicant what the judgment denied her
  • Transfer of land to a judgment creditor who may dispose of it to third parties constitutes substantial loss justifying a conditional stay

Court orders

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  1. 1.Stay of execution of the judgment and decree of 22nd September 2017 limited to orders in paragraphs 3, 4 and 7 of the decree issued on 17th October 2017
  2. 2.Stay to last 24 months or until hearing and determination of the intended appeal to the Court of Appeal, whichever comes earlier
  3. 3.Plaintiff to deposit Kshs.1,000,000 in an interest-earning bank account in the joint names of the advocates as security within 30 days, failing which the stay stands discharged automatically
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (2)

  • Northwood Services v Mac & More Solution Ltd.
    [2015] eKLR
  • Portreiz Maternity v. James Karanga Kabia
    Civil Appeal No. 61 of 1997
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution 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, "Ann Mumbi Hinga v William Mwangi Gathuma & another [2019] KEELC 3629 (KLR)", Case Analysis (2019). Not stated in extract ( judgment and decree of 22nd September 2017 in original suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3629/eng@2019-04-30

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