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ELCDismissedNot stated in extract (Court of Appeal Civil Appeal No. 377 of 2019 is the intended appeal)· [2020] KEELC 1360 (KLR)

Simon Kilinge King’oo & 11 others v Amos Kamia Nguku & 4 others; Anthony Kuvika Kamia & 2 others (Interested Parties) [2020] KEELC 1360 (KLR)

Environment and Land Court
18 September 2020
1,098 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court refused to pause execution of a land judgment because the losing party waited eight months to apply, with no explanation for the delay.

What this practically means

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Executive summary

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The Interested Parties moved the court by Notice of Motion dated 9th August 2019 seeking a stay of execution of the judgment dated 25th January 2019, by which the court allowed the Plaintiffs' claim of adverse possession over parcel Mavoko Town/Block 3/2668, entitled the Plaintiffs to it in their respective shares, and directed the Machakos Land Registrar to register them as proprietors. The stay was sought pending Court of Appeal Civil Appeal No. 377 of 2019. The Applicants, through the affidavit of the 1st Interested Party, Anthony Kuvuika Kamia, argued the appeal was arguable and would be rendered nugatory. The Plaintiffs opposed, contending the court was functus officio, lacked jurisdiction given the pending appeal and the challenge to the Record of Appeal, that no substantial loss was shown, that no security was offered, and that the application was filed late. The court set out the conditions in Order 42 Rule 6(2) and applied the Kenya Shell decision on substantial loss. It noted that stay was not sought at delivery of judgment in the presence of the Interested Parties' advocate, and that the application was filed over eight months later, on 18th September 2019, with no satisfactory explanation. Holding the delay unreasonable, the court dismissed the application on that ground alone, with costs to the Plaintiffs.

Key legal issues

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01

Whether the Applicants satisfied the conditions for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules

Holding

The Applicants failed to satisfy the conditions, principally that the application be made without unreasonable delay; the eight-month delay with no explanation was fatal and the application was dismissed on that ground alone.

Reasoning

The court set out the twin conditions in Order 42 Rule 6(2): substantial loss, absence of unreasonable delay, and security. It noted the judgment was delivered on 25th January 2019 in the presence of the Interested Parties' advocate, who did not seek stay, yet the application was only filed on 18th September 2019. No explanation was offered in the supporting affidavit, so the delay was unreasonable and the application failed.

p. 3
02

What constitutes substantial loss for purposes of an application for stay of execution

Holding

Substantial loss is the cornerstone for granting stay; the Applicants merely asserted the appeal would be rendered nugatory without demonstrating the loss.

Reasoning

Relying on Kenya Shell Limited vs. Benjamin Karuga Kigibu & Ruth Wairimu Karuga, the court adopted the principle that if there is no evidence of substantial loss, it would be a rare case when an appeal would be rendered nugatory. The Applicants' bare assertion that the suit property might be transferred to third parties did not demonstrate substantial loss, compounding their failure on the delay requirement.

p. 2

Legal principles established

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  • An order for stay of execution will not issue where the application is made after unreasonable and unexplained delay, as required by Order 42 Rule 6(2)(a) of the Civil Procedure Rules

Court orders

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  1. 1.The Application dated 9th August, 2019 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure ActSection 3A

Cases cited (2)

  • Bob Morgan Systems Ltd & Another vs. Jones
    (2004) eKLR
  • Kenya Shell Limited vs. Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) 1 KAR 1018
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules (court appealed from granting stay)

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, "Simon Kilinge King’oo & 11 others v Amos Kamia Nguku & 4 others; Anthony Kuvika Kamia & 2 others (Interested Parties) [2020] KEELC 1360 (KLR)", Case Analysis (2020). Not stated in extract (Court of Appeal Civil Appeal No. 377 of 2019 is the intended appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1360/eng@2020-09-18

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