Stephen Mwangi Wanjohi v Nyaga Jeremiah Wakahio [2020] KEELC 70 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the application was brought without unreasonable delay
The delay of over seven months from the judgment of 24th October 2019 was unexplained and inordinate; no certificate of delay was produced.
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.
Whether the applicant demonstrated substantial loss
The applicant failed to show substantial loss that would result if the stay were refused.
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.
Whether security for the due performance of the decree was given
The applicant gave no security or undertaking as required by Order 42 Rule 6(2)(b).
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.
Whether the applicant satisfied the test for a temporary injunction
The applicant failed to establish a prima facie case or irreparable loss not compensable by damages.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 16th June 2020 is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.