Rosalia Masabakwa Abwoba & 3 others v Francis Walumbe s/o Joseph Mapesa & another [2019] KEELC 3662 (KLR)
The bottom line
#The Environment and Land Court in Kakamega dismissed a family's bid to set aside a 2018 land judgment because they proved no substantial loss, no delay excuse, and no arguable appeal.
What this practically means
#Executive summary
#Key legal issues
#Conditions for stay of execution under Order 42 rule 6
The applicants failed to fulfil any of the required conditions: substantial loss, absence of unreasonable delay, and security
The court restated Order 42 rule 6(1) and Order 42 rule 6 of the Civil Procedure Rules, requiring proof of substantial loss, application without unreasonable delay, and security for due performance of the decree. It then found, on the grounds of the application, that none of these conditions had been fulfilled, and that no memorandum of appeal had been availed to show any chance of success on an intended appeal.
Arguability of the intended appeal
The applicants did not show that the intended appeal was arguable or that refusal of stay would render it nugatory
Applying Reliance Bank Ltd vs Norlake Investments Ltd and Chris Munga N. Bichange vs Richard Nyagaka Tongi, the court held that an applicant must show an arguable appeal and that the appeal would not be rendered nugatory if stay is refused. The applicants produced no memorandum of appeal and showed neither limb, so the application could not succeed.
Balance between right of appeal and right to enjoy fruits of judgment
There must be just cause to deprive a successful plaintiff of the fruits of judgment; none was shown
Citing Mohamed Salim T/A Choice Butchery vs Nasserpuria Memon Jamat, the court noted that the right of appeal must be balanced against the plaintiff's right to enjoy the fruits of the judgment, and only a just cause justifies deprivation. The applicants demonstrated no such just cause, and strong grounds of appeal alone would not justify stay per Carter & Sons Ltd.
Legal principles established
#- For a stay of execution or setting aside of judgment, the applicant must demonstrate substantial loss, that the application was made without unreasonable delay, and furnish security
- An intended appeal must be arguable and, if successful, must not be rendered nugatory; both limbs must be demonstrated
Court orders
#- 1.The application dated 20th November 2018 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Order XXXVI, Rule 1(a) & 2(b) and Order XLIV, Rule 1(a) & (b) of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rosalia Masabakwa Abwoba & 3 others v Francis Walumbe s/o Joseph Mapesa & another [2019] KEELC 3662 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3662/eng@2019-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.