Jane Wangui Macharia & 2 othersv Ruth Mohagi Macharia & another [2020] KEELC 1175 (KLR)
The bottom line
#A Kenyan court refused to pause execution of a land judgment because the applicants waited over three months, showed no loss, and provided no security.
What this practically means
#Executive summary
#Key legal issues
#Whether substantial loss would result to the Applicants if stay is refused
No substantial loss was demonstrated; the decree had been fully executed - the 1st Respondent had accessed the sale proceeds and the 2nd Respondent was in possession of the suit land - leaving nothing to stay
The court found there was no contestation that the decree was fully executed: the 1st Respondent had accessed and utilized the funds from the frozen account, being proceeds of sale, and the 2nd Respondent was in possession and had tilled the land. The court held it could not see how the Applicants would suffer loss since the application had been overtaken by events and nothing was left to stay.
Whether the application was brought without unreasonable delay
The application filed on 20th January 2020, over three months after judgment delivered on 9th October 2019, was delayed and no explanation was offered
The court noted the Applicants did not submit on this issue. Judgment was delivered on 9th October 2019 and the application was filed on 20th January 2020, a period of over three months. No reason was given for the delay, so this condition failed and the Applicants were guilty of laches.
Whether the Applicants furnished security for due performance of the decree
The Applicants furnished no security nor pledged to furnish any, a mandatory condition under Order 42 Rule 6(2)(b)
Order 42 Rule 6(2)(b) requires security in mandatory terms. The Applicants furnished no security nor bound themselves to furnish any. Relying on Arun C Sharma v Ashana Raikundalia, the court noted security guarantees due performance of the decree and is not punitive. On this ground the application had to fail.
Legal principles established
#- The purpose of an application for stay of execution pending appeal is to preserve the subject matter in dispute so that the appeal, if successful, is not rendered nugatory
- Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory
- Security under Order 42 Rule 6 is to guarantee due performance of the decree, not to punish the judgment debtor
- The court ought not make a practice of denying a successful litigant the fruits of their judgment
Court orders
#- 1.The Applicants' Notice of Motion dated 13th January 2020 seeking stay of execution pending appeal is denied and dismissed with costs to the 2nd Respondent
- 2.The Applicants shall prepare, file and serve their record of Appeal within 45 days
- On appeal from
- Chief Magistrate's Court, Nyahururu
- CMC ELC No. 248 of 2018
- Jurisdiction invoked
- Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules, Sections 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Wangui Macharia & 2 othersv Ruth Mohagi Macharia & another [2020] KEELC 1175 (KLR)", Case Analysis (2020). Notice of Motion dated 13th January 2020 (arising from appeal against judgment in Nyahururu CMC ELC No. 248 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1175/eng@2020-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.