Charity Venessa Gathoni Kamau v Mark Pyman & 2 others [2019] KEELC 3717 (KLR)

Environment and Land Court

8 April 2019

MNMwangi Njoroge

1,148 words in judgment

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The bottom line

A Kenyan court refused to pause enforcement of a land ruling because the applicants only claimed loss without providing any supporting evidence.

What this practically means

Executive summary

By an application dated 19 February 2019, the Defendants/Applicants sought stay of execution of the ruling and all consequential orders issued on 5 February 2019, pending the hearing of the application and of an intended appeal against that ruling. The ruling under challenge had vacated the order of 8 July 2014 dismissing the plaintiff's suit for want of prosecution, reinstated the suit, restored the status quo prevailing before 11 April 2018, vacated the eviction orders issued on 8 July 2018 in respect of parcel L.R No. 12949 at Milimani, Kitale, and barred the defendants from interfering with the suit property. The applicants argued they would suffer irreparable loss and that the appeal would be rendered nugatory. The Plaintiff/Respondent opposed via grounds of opposition, contending the stay conditions were unmet and the appeal had slim chances of success. Mwangi Njoroge, J framed a single issue: whether stay of execution pending appeal should issue. The court applied the three conditions under Order 42/46 Rule 6 of the Civil Procedure Rules as articulated in Kiplagat Kotut v Rose Jebor Kipngok, Kenya Commercial Bank v Sun City Properties, and Antoine Ndiaye v African Virtual University. It found the application filed expeditiously and the applicants willing to furnish security, but held that no evidence of probable or substantial loss was exhibited - only a bare assertion of irreparable loss. The court also observed that the applicants had irregularly obtained possession by evicting the respondent, with irregularity found in the service before the eviction orders were obtained. The application was dismissed with costs to the respondent on 8 April 2019.

Key legal issues

Whether the conditions for stay of execution pending appeal under Order 42/46 Rule 6 were met

Holding

The application failed because substantial loss was not demonstrated, despite expeditious filing and willingness to furnish security.

Reasoning

The court restated the three prerequisites for stay: no undue delay, substantial loss, and security. It found the application filed expeditiously on 19/2/2019 and the applicants willing to abide by security orders. However, the supporting affidavit contained no evidence of probable loss, only a bare assertion of irreparable loss, which the court held insufficient. The application therefore failed on the substantial-loss ground.

p. 3

Legal principles established

A stay of execution pending appeal will not be granted unless the conditions in Order 42 Rule 6 of the Civil Procedure Rules - substantial loss, absence of unreasonable delay, and security - are satisfied.
An applicant for stay must demonstrate substantial loss with evidence; a bare assertion of irreparable loss is insufficient.

Court orders

1.The application dated 19/2/2019 is dismissed with costs to the respondent.

Authorities

Legislation

Civil Procedure Rules, 2010Order 46 Rule 6(2)
Civil Procedure Rules, 2010Order 42 Rule 6

Cases cited (3)

Kiplagat Kotut vs Rose Jebor Kipngok
[2015] eKLR
Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others
[2012] eKLR
Antoine Ndiaye vs. African Virtual University
[2015] eKLR, High Court at Nairobi, Civil Suit No. 422 of 2006

Jurisdiction invoked: Order 46 Rule 6(2) of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Charity Venessa Gathoni Kamau v Mark Pyman & 2 others [2019] KEELC 3717 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3717/eng@2019-04-08

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