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ELCAllowedNotice of Motion dated 21st September 2018 (Embu; arising from judgment delivered 12th July 2018)· [2019] KEELC 4760 (KLR)

Christopher Njeru v Eugenio Njagi M’chege (Environment & Land Case 50 of 2017) [2019] KEELC 4760 (KLR)

High Court of Kenya
7 February 2019
865 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court paused execution of a land judgment for three years, but only after the losing party safeguarded the property by depositing its title in court.

What this practically means

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Executive summary

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By a notice of motion dated 21st September 2018 brought under Order 42 Rule 6 of the Civil Procedure Rules 2010 and section 3A of the Civil Procedure Act, the Defendant sought a stay of execution of the judgment delivered on 12th July 2018 and all consequential orders pending the hearing and determination of Nyeri Civil Appeal No. 139 of 2018. The Defendant contended, through his supporting affidavit and counsel's submissions, that the appeal had high chances of success, that he would suffer irreparable loss if the suit property was registered in the Plaintiff's name, and that the appeal would be rendered nugatory if the property was alienated before its conclusion. The Plaintiff opposed, asserting that no irreparable loss had been demonstrated and that the application was a delaying tactic. The matter was canvassed by written submissions; only the Defendant filed. The court framed a single question: whether the Defendant had satisfied the conditions for stay under Order 42 Rule 6(2) - substantial loss, absence of unreasonable delay, and security. Although the Defendant's affidavit did not specify the substantial loss, and the apprehension of alienation arose only in submissions without affidavit response from the Plaintiff, the court found a possibility of substantial loss if the property was alienated before the appeal concluded, which would render the appeal nugatory. On 7th February 2019 the court granted a stay of execution for three years conditional on the Defendant depositing the original title documents in court within 15 days, issued an inhibition against Title No. Gaturi/Nembure/3685 pending the appeal, and ordered that costs of the application abide the result of the appeal.

Key legal issues

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01

Whether the Defendant satisfied the conditions for stay of execution under Order 42 Rule 6(2)

Holding

A stay was granted on conditions, the court finding possible substantial loss through alienation of the suit property, tempered by security in the form of deposit of the title documents.

Reasoning

The court applied Order 42 Rule 6(2), requiring substantial loss, absence of unreasonable delay, and security. Although the Defendant did not specify the loss in his affidavit, the risk of alienation emerged in submissions. The Plaintiff had no chance to respond to that apprehension by affidavit. The court found possible substantial loss rendering the appeal nugatory, and crafted a conditional stay plus inhibition to safeguard the suit property pending appeal.

p. 2
02

Whether an apprehension of alienation raised only in written submissions could found the order

Holding

The court considered the apprehension despite it being raised in submissions, but granted relief protecting the Plaintiff by requiring deposit of title documents and an inhibition.

Reasoning

The court noted the Plaintiff was not given an opportunity to respond by affidavit to the Defendant's apprehension of alienation, which arose only in written submissions. The Defendant also did not address his own risk of disposing of the property. Rather than dismissing the application on that basis, the court fashioned safeguards: deposit of original title documents and an order of inhibition against Title No. Gaturi/Nembure/3685.

p. 2

Legal principles established

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  • Substantial loss may arise where the suit property is alienated before the conclusion of a pending appeal, rendering the appeal nugatory; the court may safeguard the property through a conditional stay coupled with an inhibition.

Court orders

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  1. 1.A stay of execution of the judgement dated 12th July 2018 is granted for a period of 3 years on condition that the Defendant shall deposit the original title documents for the suit property in court within 15 days from the date hereof
  2. 2.An order of inhibition is issued to prevent the registration of any transactions with respect to Title No. Gaturi/Nembure/3685 pending the conclusion of Nyeri Civil Appeal No. 139 of 2018
  3. 3.Costs of the application shall abide the result of the pending appeal

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 42 Rule 6 (and Order 42 Rule 6(2))
  • Civil Procedure Actsection 3A
On appeal from
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null
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules 2010; section 3A Civil Procedure Act (Cap 21)

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, "Christopher Njeru v Eugenio Njagi M’chege (Environment & Land Case 50 of 2017) [2019] KEELC 4760 (KLR)", Case Analysis (2019). Notice of Motion dated 21st September 2018 (Embu; arising from judgment delivered 12th July 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4760/eng@2019-02-07

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