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ELCAllowedNot stated in the excerpt provided· [2020] KEELC 1215 (KLR)

Javid Iqbal Karim (Suing as legal representative of the estate of Gulam Fatima) & another v Ze Yun Yang [2020] KEELC 1215 (KLR)

Environment and Land Court
24 September 2020
1,676 words in judgment
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The bottom line

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Kenya's Environment and Land Court paused execution of a Kshs 4.7 million land judgment because the winners couldn't prove they could refund the money if the appeal succeeded.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Okong'o J) determined the defendant's Notice of Motion dated 12th July 2019 seeking a stay of execution of a judgment of 23rd February 2018, in which the defendant was ordered to pay the plaintiffs Kshs. 4,702,313/- being the balance of the purchase price for L.R No. 209/1673 sold on 4th February 2004. The defendant, having filed a notice of intention to appeal to the Court of Appeal, argued that the plaintiffs were persons of unknown means who could not refund the decretal amount if the appeal succeeded, rendering the appeal nugatory. The plaintiffs opposed, contending the application was brought after inordinate delay, raised no triable issue, and that they were persons of means capable of refunding the money; alternatively they proposed a joint interest-earning account for half the principal plus taxed costs. The court applied Order 42 Rule 6(2) of the Civil Procedure Rules. It found the delay explained to its satisfaction by the plaintiffs' earlier review application and the transfer of the file from Thika to Milimani. Applying Section 112 of the Evidence Act as explained in George Mbiti Kiebia v Isaya Theuri M'lintari, the court held the plaintiffs bore the burden of proving their means to refund, which their advocate's bare assertion failed to discharge. Substantial loss was therefore established, and the defendant's offer to deposit the entire decretal amount in a joint account constituted sufficient security. The court stayed execution pending appeal, directed deposit of Kshs. 5,500,000/- within 30 days failing which the stay lapses automatically, and ordered each party to bear its own costs of the application.

Key legal issues

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01

Whether the defendant would suffer substantial loss if stay is not granted

Holding

Yes - the plaintiffs gave no evidence of their means to refund the decretal amount, so the appeal if successful would be rendered nugatory.

Reasoning

The defendant contended the plaintiffs had no known assets or income and could not refund the decretal sum if the appeal succeeded. Under Section 112 of the Evidence Act, facts especially within a party's knowledge must be proved by that party. The plaintiffs' advocate merely asserted they were persons of means without particulars of assets or income. The court therefore found substantial loss likely and the appeal would be rendered nugatory if the money was paid out.

p. 2
02

Whether the application was brought without unreasonable delay

Holding

Although brought after a long interval from the judgment, the delay was explained to the court's satisfaction (the plaintiffs' review application and the transfer of the file).

Reasoning

The court accepted the plaintiffs' point that the application came a long time after the February 2018 judgment. However, the defendant explained the delay by reference to the plaintiffs' review application determined on 2nd April 2019 and the need to wait for the file to be returned from Thika to Milimani. The explanation satisfied the court, so this condition was met.

p. 2
03

Whether security for the due performance of the decree had been offered

Holding

Yes - the defendant's offer to deposit the entire decretal amount in a joint interest-earning account was sufficient security.

Reasoning

Order 42 Rule 6(2) requires the applicant to give such security as the court orders. The defendant agreed to deposit the entire decretal amount into an interest-earning bank account in the joint names of the parties' advocates. The court found this sufficient and fixed the security at Kshs. 5,500,000/- to be deposited within 30 days, failing which the stay lapses automatically.

p. 2

Legal principles established

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  • Where facts such as ability to refund a decretal amount are especially within a party's knowledge, that party bears the burden of proving them under Section 112 of the Evidence Act; absent such proof, substantial loss may be inferred.
  • Substantial loss is the cornerstone for granting a stay of execution.

Court orders

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  1. 1.Execution of the judgment delivered on 23rd February, 2018 is stayed pending the hearing and determination of the defendant's intended appeal to the Court of Appeal
  2. 2.The plaintiffs shall deposit in an interest earning bank account in Nairobi in the joint names of the advocates on record for the parties a sum of Kshs. 5,500,000/- as security within 30 days, failing which the stay shall lapse automatically
  3. 3.Each party shall bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 41 Rule 4 (referred to in Kenya Shell Ltd v Karuga)
  • Evidence ActSection 112

Cases cited (2)

  • Kenya Shell Limited v Karuga
    (1982 – 1988) I KAR 1018
  • George Mbiti Kiebia & Another v Isaya Theuri M'lintari & Another
    [2014] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "Javid Iqbal Karim (Suing as legal representative of the estate of Gulam Fatima) & another v Ze Yun Yang [2020] KEELC 1215 (KLR)", Case Analysis (2020). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1215/eng@2020-09-24

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