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ELCDismissedELC Appeal No. 40 of 2019· [2020] KEELC 1576 (KLR)

Wycliffe Sikuku Walusaka v Philip Kaita Wekesa [2020] KEELC 1576 (KLR)

Environment and Land Court
24 July 2020
1,502 words in judgment
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The bottom line

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A Kenyan land court refused to pause execution of a judgment because the applicant waited eight months and offered no security for the decree.

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 Bungoma (Boaz N. Olao, J) on a Notice of Motion by the Appellant, Wycliffe Sikuku Walusaka, seeking a stay of execution of the judgment and decree of Hon S. O. Mogute (Principal Magistrate) in Bungoma CMCC No. 418 of 2017 delivered on 23rd October 2019, pending the hearing and determination of his amended appeal. The Respondent filed no response, so the application was unopposed, but the court tested it against the thresholds in Order 42 Rule 6(1) and (2) of the Civil Procedure Rules. On substantial loss, the Applicant deponed that execution would lead to eviction and demolition of his house and other structures, which the court accepted as substantial loss that would render a successful appeal nugatory. However, the application failed on the other two limbs: it was filed on 24th June 2020, eight months after judgment, an unexplained and unreasonable delay (consistent with precedent treating six and eight months as unreasonable); and the Applicant offered no security for the due performance of the decree, a mandatory requirement, distinguishing the authority of Bashir Godana relied on by his counsel. The court further found the motion was lodged only after the Respondent's auctioneer sought security for execution, evidencing bad faith and an intent to scuttle execution. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether substantial loss was demonstrated

Holding

The Applicant satisfied the substantial loss limb - execution would mean demolition of his house and other structures, rendering a successful appeal nugatory.

Reasoning

The Applicant deponed in his supporting affidavit that if the decree was executed and the appeal later succeeded, his house and other structures would have been demolished. The court found that loss of one's home and property constitutes substantial loss and would render the appeal nugatory if successful. This limb of the test was therefore proved.

p. 2
02

Whether the application was filed without unreasonable delay

Holding

The eight-month delay between delivery of judgment (23rd October 2019) and filing of the application (24th June 2020) was unreasonable and unexplained.

Reasoning

Although the Applicant filed his appeal timeously on 15th November 2019 under Section 79G of the Civil Procedure Act, the stay application came eight months after judgment. The court held that reasonableness is assessed case by case, but this delay was unexplained, and precedent treating six and eight months as unreasonable disentitled the Applicant.

p. 2
03

Whether the requisite security was offered

Holding

The Applicant offered no security for the due performance of the decree, failing a mandatory condition.

Reasoning

Neither the Applicant's eight-paragraph supporting affidavit nor the grounds in support of the motion contained any offer of security, which Order 42 Rule 6(2)(b) requires. The court contrasted the cited Bashir Godana case, where the applicant had offered to heed any conditions on security, and held that the offer must come from the Applicant himself as a sign of good faith.

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04

Whether the application was made in good faith

Holding

The application was made only after the Respondent's auctioneer filed an application for security during execution, indicating it was meant to scuttle execution rather than made in good faith.

Reasoning

The court noted the Applicant moved to court on 22nd June 2020 shortly after the Respondent's auctioneer filed an application on 19th June 2020 seeking security during the execution process. Combined with the silence on security, the court inferred the application was a tactical move to obstruct execution rather than a pursuit of the interests of justice.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate substantial loss, file the application without unreasonable delay, and furnish requisite security - all three conditions must be satisfied.
  • Substantial loss is the cornerstone of an application for stay of execution pending appeal.
  • An applicant must prove specific details and particulars of loss; mere assertion is insufficient.
  • The offer of security must come from the applicant himself as a sign of good faith; an application made only after the decree-holder initiates execution may be treated as an obstruction tactic rather than a good-faith application.

Court orders

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  1. 1.The Notice of Motion dated 2nd June 2020 and filed on 24th June 2020 seeking stay of execution pending appeal is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure ActSection 79G

Cases cited (6)

  • Kenya Shell Ltd v Benjamin Kibiru
    1982–88 1 KAR 1018
  • Machira t/a Machira & Co Advocates v East African Standard (No 2)
    2002 KLR 63
  • Silvestar Automobile Ltd v Fidelity Shield Insurance Company Ltd
    2017 eKLR
  • Benjamin Kimeli Tanui v Omari Salim Nasib & Another
    2020 eKLR
  • Vishram Halai & Another v Thornton & Turpin Ltd (1963) Ltd
    1990 KLR 365
  • Bashir Godana v Fatuma Godana Tupi
    2018 eKLR
On appeal from
Principal Magistrate's Court, Bungoma
Bungoma CMCC No. 418 of 2017
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules (appeal from subordinate court to the Environment and Land Court)

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, "Wycliffe Sikuku Walusaka v Philip Kaita Wekesa [2020] KEELC 1576 (KLR)", Case Analysis (2020). ELC Appeal No. 40 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1576/eng@2020-07-24

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