Sarah Njuhi Mwenda & another (Suing as legal representative of John Macharia Mwenda) v Luka Njararuhi & 6 others (Sued as legal representatives of Andrew Mungai Njui & Dickson Gitau Muite) [2020] KEELC 1634 (KLR)
The bottom line
#A Nairobi court paused an eviction but not the money award — and only until the appellants deposit Kshs. 1.5 million within 60 days.
What this practically means
#Executive summary
#Key legal issues
#Whether substantial loss would result absent a stay as regards vacant possession
Yes - eviction would allow the defendants to deal with the property to third parties, rendering any successful appeal nugatory
The court found the plaintiffs had occupied the suit property for over 25 years. If evicted, the defendants could take possession and sell, charge or lease the property to third parties, so a successful intended appeal would be rendered nugatory. Substantial loss was therefore established only as concerns the order for vacant possession, not the monetary awards.
Whether the monetary part of the decree should be stayed
No stay of the monetary awards
The plaintiffs gave no indication they would have difficulty settling the Kshs. 59,000/- liquidated damages and Kshs. 200,000/- general damages, nor that the defendants would be unable to repay if the appeal succeeded. Absent evidence of substantial loss on that limb, execution of the monetary part was left to proceed.
Whether security should be ordered as a condition of the stay
Yes - deposit of Kshs. 1,500,000/- in court within 60 days
The agreement of sale was lawfully rescinded by letter dated 2nd January 1990 after the plaintiffs failed to pay the balance by the extended completion date. The plaintiffs remained in occupation and derived income from the property while the defendants were deprived of its use for over 25 years, and the appeal would take time. Security was therefore necessary to secure the defendants against loss of use should the appeal fail.
Legal principles established
#- Substantial loss is the cornerstone for granting a stay of execution; without evidence of substantial loss an appeal is rarely rendered nugatory
- A stay of execution may be granted in respect of part of a decree (vacant possession) while the monetary part is left executable, coupled with security
Court orders
#- 1.Execution of the part of the judgment directing the plaintiffs to vacate L.R No. 4953/4/71 Thika is stayed pending the hearing and determination of the plaintiffs' intended appeal to the Court of Appeal
- 2.The plaintiffs shall deposit in court Kshs. 1,500,000/- within 60 days, in default of which the stay shall lapse automatically
- 3.The application is refused as concerns the monetary part of the judgment
- 4.Each party shall bear its own costs of the application
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal to the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sarah Njuhi Mwenda & another (Suing as legal representative of John Macharia Mwenda) v Luka Njararuhi & 6 others (Sued as legal representatives of Andrew Mungai Njui & Dickson Gitau Muite) [2020] KEELC 1634 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1634/eng@2020-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.