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ELCDismissedKerugoya CMCC No. 229 of 2014 (Appeal)· [2020] KEELC 70 (KLR)

Stephen Mwangi Wanjohi v Nyaga Jeremiah Wakahio [2020] KEELC 70 (KLR)

Environment and Land Court
23 October 2020
2,077 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause a land judgment because the applicant waited over seven months to act and proved no harm.

What this practically means

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Executive summary

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The appellant/applicant moved the Environment and Land Court at Kerugoya by Notice of Motion dated 16th June 2020 under Order 42 Rule 6(6) of the Civil Procedure Rules and Section 3 of the Civil Procedure Act, seeking a stay of execution of the judgment of Hon. A. Ithuku, Chief Magistrate, delivered on 24th October 2019 in Kerugoya CMCC No. 229 of 2014, together with temporary injunctions restraining the respondent from selling, dealing, charging or transferring L.R. No. SAGANA/KIINE/311 or evicting the appellant pending the hearing of an intended appeal. The applicant asserted he had bought the suit land in 2009 for Ksh. 1,500,000/=, paying a deposit of Ksh. 1,200,000/=, but that the respondent refused to complete the transfer; the trial court nonetheless found the applicant in breach and ordered him to vacate. The respondent opposed, arguing the application was incompetent, brought after 7 months and 14 days without explanation, that similar applications were pending in the lower court, that no competent appeal had been filed, and that the applicant's counter-claim had sought payment rather than transfer of the land. The respondent relied on authorities including Kenya Shell v Kibiru on substantial loss. The court identified the three conditions for stay under Order 42 Rule 6(2): absence of unreasonable delay, substantial loss, and security. It found the delay of over seven months unexplained and inordinate, no certificate of delay having been produced; no substantial loss demonstrated, adopting the Kenya Shell principle; and no security given. The injunction claim also failed for want of a prima facie case and irreparable loss. The application was dismissed with costs on 23rd October 2020.

Key legal issues

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01

Whether the application was brought without unreasonable delay

Holding

The delay of over seven months from the judgment of 24th October 2019 was unexplained and inordinate; no certificate of delay was produced.

Reasoning

Under Section 79G of the Civil Procedure Act, an appeal should be filed within 30 days of judgment unless a certificate of delay shows the delay was occasioned by the court in typing, proof-reading and certifying proceedings. The applicant produced no such certificate and offered no explanation for the more than seven-month delay in bringing the application, which the court held was inordinate and unacceptable.

p. 3
02

Whether the applicant demonstrated substantial loss

Holding

The applicant failed to show substantial loss that would result if the stay were refused.

Reasoning

Following Kenya Shell Limited v Benjamin Karuga Kibiru & Another, the court held that substantial loss is the cornerstone of the jurisdiction to grant a stay. The applicant gave no evidence of the loss he would suffer, and granting the stay would merely deny a successful litigant the fruits of his judgment.

p. 4
03

Whether security for the due performance of the decree was given

Holding

The applicant gave no security or undertaking as required by Order 42 Rule 6(2)(b).

Reasoning

The third condition for stay is that the applicant provide such security as the court orders for the due performance of the decree. The applicant did not give any security or undertaking, so this condition was also not satisfied.

p. 4
04

Whether the applicant satisfied the test for a temporary injunction

Holding

The applicant failed to establish a prima facie case or irreparable loss not compensable by damages.

Reasoning

Applying the established Giella-type test for interlocutory injunctions, the court found the applicant had neither established a prima facie case with probability of success nor demonstrated irreparable injury that damages could not compensate, and so the injunctive relief sought under Order 42 Rule 6(6) could not issue.

p. 4

Legal principles established

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  • An application for stay of execution must be brought without unreasonable delay; unexplained delay of over seven months from judgment is inordinate.
  • Substantial loss is the cornerstone of the jurisdiction to grant a stay; without evidence of substantial loss the stay should not be granted.
  • The three conditions for stay pending appeal under Order 42 Rule 6(2) are absence of unreasonable delay, substantial loss, and security for due performance of the decree.

Court orders

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  1. 1.The Notice of Motion dated 16th June 2020 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 42 Rule 6(6)
  • Civil Procedure ActSection 3
  • Civil Procedure Act Cap. 21Section 79G
  • Civil Procedure ActSection 79C

Cases cited (6)

  • Selestica Limited vs Gold Rock Development
    Civil Appeal No. 48 of 2015
  • Jaber Mohsen Ali & Another vs Priscillah Boit & Another
    E & L No. 200 of 2012 (2014) eKLR
  • Kenya Commercial Bank Limited vs John Benjamin Wanyama
    Civil Appeal No. 97 of 1999
  • Vishyram Ravji Halai vs Thornton & Turpin
    Civil Application No. 15 of 1990 (Nairobi) eKLR 365
  • Kenya Shell Limited vs Benjamin Karuga Kibiru & Another
    Civil Application No. 97 of 1986 (Nairobi) (1986) KLR 410
  • Kenya Hotel Properties Limited vs Wutesden Investments Limited
    Civil Application No. 322 of 2006 (UR 178/06)
On appeal from
Chief Magistrate's Court, Kerugoya
Kerugoya CMCC No. 229 of 2014
Jurisdiction invoked
Order 42 Rule 6(6) Civil Procedure Rules and Section 3 Civil Procedure Act

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, "Stephen Mwangi Wanjohi v Nyaga Jeremiah Wakahio [2020] KEELC 70 (KLR)", Case Analysis (2020). Kerugoya CMCC No. 229 of 2014 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/70/eng@2020-10-23

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