Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedCivil Appeal No 52 of 2020 (Notice of Motion dated 14th August 2020)· [2020] KEELC 1005 (KLR)

Florence Namachitu & another v Doris Wanyama [2020] KEELC 1005 (KLR)

High Court of Kenya
15 October 2020
BOBoaz N. Olao
1,625 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The High Court refused to pause a Bungoma money-and-land decree because the applicants waited three months and offered no security.

What this practically means

#

Executive summary

#
This is a ruling by Boaz N. Olao J of the High Court at Bungoma on a Notice of Motion dated 14th August 2020 brought under Order 40 Rule 6(1) and (2) of the Civil Procedure Rules (the court analysed it against Order 42 Rule 6(1) and (2)), in which the Appellants sought a stay of execution of the decree in Bungoma CMCC No 85 of 2018 pending the hearing and determination of Civil Appeal No 52 of 2020. The application was initially placed before Musyoka J, who declined to handle it citing want of jurisdiction as a land dispute. The Respondent opposed, arguing the application repeated an abandoned application, was overtaken by events (the Land Registrar Bungoma had removed the caution), and that no security or proof of damage was offered. The court identified three conditions: substantial loss, absence of unreasonable delay, and an offer of security. While prepared to accept that eviction from land purchased 30 years ago and extensively developed would amount to substantial loss, the court found the application was filed some three months after the judgment of 15th May 2020 with no explanation, amounting to unreasonable delay. Further, no security was offered. Holding that all conditions must be satisfied, the court dismissed the motion with costs on 15th October 2020, the ruling being delivered by electronic mail under COVID-19 guidelines.

Key legal issues

#
01

Substantial loss

Holding

Eviction from land purchased 30 years ago and extensively developed would amount to substantial loss

Reasoning

The court found that although the Appellants pleaded no specific details, eviction from land purchased 30 years prior and extensively developed would constitute substantial loss, drawing on Kenya Shell v Kibiru on the centrality of substantial loss to stay applications.

p. 2
02

Unreasonable delay

Holding

Filing the application 3 months after judgment without explanation is unreasonable delay

Reasoning

Judgment was delivered 15th May 2020; although the appeal was filed timeously, the application for stay was not filed until 17th August 2020. The only prior stay request was made on 12th August 2020 after a ruling on assessment of costs. No explanation was offered, and even one day can amount to unreasonable delay.

p. 2
03

Security

Holding

No offer of security was made, disentitling the Appellants

Reasoning

Order 42 Rule 6(2)(b) requires the applicant to offer security for due performance of the decree. The Appellants made no such offer, and the court reiterated that all conditions must be satisfied conjunctively for a stay to issue.

p. 3

Legal principles established

#
  • A party seeking stay must satisfy all conditions under Order 42 Rule 6: substantial loss, no unreasonable delay, and offer of security
  • Unexplained delay in filing an application for stay is unreasonable and disentitles the applicant to the remedy

Court orders

#
  1. 1.The Notice of Motion dated 14th August 2020 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 40 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (3)

  • Kenya Shell Ltd v Benjamin Kibiru
    1982–88 1 KAR 1018 (1986 KLR 410)
  • Machira T/A Machira & Co Advocates v East African Standard (No 2)
    2002 KLR 63
  • Vishram Ravji Halai & Another v Thornton & Turpin (1963) Ltd
    CA Civil Appeal No 15 of 1990 [1990 KLR 365]
On appeal from
Magistrate's Court, Bungoma
BUNGOMA CMCC No 85 of 2018
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Florence Namachitu & another v Doris Wanyama [2020] KEELC 1005 (KLR)", Case Analysis (2020). Civil Appeal No 52 of 2020 (Notice of Motion dated 14th August 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1005/eng@2020-10-15

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