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ELCPartially AllowedNot stated in judgment· [2020] KEELC 1488 (KLR)

Pauline Mutee Makumu & another v Ursula Kreszenntia & 3 others [2020] KEELC 1488 (KLR)

Environment and Land Court
16 July 2020
MSMunyao Sila
1,480 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court will pause judgment enforcement only if you offer real security; refusing to pay anything cost this applicant his protection.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Munyao Sila J) on the 3rd defendant's application dated 29 November 2019 for stay of execution of a judgment delivered by Yano J on 7 October 2019 (written by Omollo J). The underlying judgment, in a suit where the plaintiffs claimed specific performance of a 2003 sale agreement and damages, awarded the plaintiffs the suit land (Subdivision No. 2444, Original No. 1938/1, Section I Mainland North) and KShs. 53 million jointly and severally against the defendants for demolished structures. The applicant sought stay pending an intended appeal to the Court of Appeal, opposed by the successful plaintiffs, who demanded deposit of the KShs. 53 million as security. The court outlined the Order 42 Rule 6(2) test: no unreasonable delay, substantial loss, and security for due performance of the decree. It held that an injunction can be granted within a stay application where appropriate. Although the delay of over 30 days beyond the initial 14-day stay was unexplained, the decisive issue was security: counsel for the applicant was emphatic that no security would be offered, and the court questioned how the applicant could pay after losing an appeal if he could not raise the sum now, noting the land could not be offered as security since it had been adjudged to belong to the plaintiffs. The court granted a conditional stay: within 30 days the applicant must confirm availability of KShs. 53 million for deposit into a joint interest-earning account of counsel, in which case no disposition of the suit property would be registered until the appeal is heard; failing which the plaintiffs may fully execute the decree. Costs were made conditional on compliance.

Key legal issues

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01

Entitlement to stay of execution pending appeal

Holding

Stay granted conditionally; the applicant failed the security requirement by refusing to offer any security, and the delay of over 30 days beyond the initial 14-day stay was unexplained

Reasoning

Order 42 Rule 6(2) requires the applicant to show application without unreasonable delay, substantial loss, and security for due performance of the decree. The court found the delay of over 50 days after judgment (over 30 days beyond the initial 14-day stay) unexplained but did not dwell on it. The decisive failure was security: counsel was emphatic the client would offer none, and the court doubted his ability to satisfy the decree later if he could not raise KShs. 53 million now. The land could not be offered as security since judgment vested it in the plaintiffs.

p. 2
02

Whether an injunction can issue within a stay application

Holding

Yes; a stay pending appeal may include an injunction pending appeal depending on the circumstances

Reasoning

Counsel for the plaintiffs submitted the court could not grant an injunction pending appeal. The court disagreed, holding that a stay can have various aspects including an injunction, and that the key consideration is ensuring the appeal is not rendered nugatory, subject to the applicant satisfying Order 42 Rule 6(2).

p. 2

Legal principles established

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  • Security for the due performance of the decree is a mandatory requirement for a stay of execution pending appeal under Order 42 Rule 6(2)
  • A court may grant an injunction within an application for stay pending appeal where appropriate to prevent the appeal being rendered nugatory

Court orders

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  1. 1.Stay of execution pending appeal granted conditionally upon the applicant confirming availability of KShs. 53 million to counsel for the plaintiffs within 30 days
  2. 2.If deposited, the money to be placed in a joint interest-earning account in the joint names of counsel for the applicant and counsel for the plaintiffs
  3. 3.Upon deposit, no registration of any disposition in the register of the suit property until the appeal is heard
  4. 4.If security is not deposited, the applicant to pursue the appeal without stay and the plaintiffs at liberty to fully execute the decree
  5. 5.If security is deposited, costs of the application to be costs in the intended appeal; if not, the applicant to bear the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Pauline Mutee Makumu & another v Ursula Kreszenntia & 3 others [2020] KEELC 1488 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1488/eng@2020-07-16

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