Joel Ndiritu Ndiang’ui v Ann Kabura Chomba [2020] KEELC 1725 (KLR)
The bottom line
#A Kenyan landowner lost his bid to freeze a court judgment because he showed no real loss to himself and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant demonstrated substantial loss
The Applicant failed to demonstrate substantial loss since he admitted he was not in occupation of the suit land; his brother, a non-party, resided there.
The court noted there was no contestation that the Applicant himself was not in occupation or possession, having allowed his brother, who is not a party to the suit, to reside on the land. The court could not understand how the Applicant would suffer loss, and no evidence showed the Respondent intended to dispose of the land. Relying on Mukuma v Abuoga and Charles Wahome Gethi, the court held that an applicant must show the actual substantial loss he stands to suffer.
Whether the application was brought without undue delay
The application was filed about four months after judgment but the court, considering the Covid-19 pandemic, found it was brought without undue delay.
Judgment was delivered on 16th January 2020 and the decree issued on 31st January 2020; the application was filed on 8th May 2020, a period of about four months. Although the Respondent argued the delay of about 50 days was inordinate, the court took judicial notice of the prevailing Covid-19 pandemic circumstances and found the delay not undue. This condition was therefore satisfied.
Whether the Applicant offered security
The Applicant did not offer or furnish any security, a mandatory requirement under Order 42 Rule 6(2)(b).
The court found the Respondent's submission correct that the Applicant had neither furnished nor offered any security for the due performance of the decree. This is a mandatory legal requirement under Order 42 Rule 6(2)(b) of the Civil Procedure Rules. The Respondent had suggested that at least the assessed costs of Kshs 91,895 be offered as security, but nothing was offered.
Legal principles established
#- Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory
- It is not enough for an applicant to say they live on the suit land; they must show the substantial loss they stand to suffer if the decree is executed
- A successful party is entitled to the fruits of his judgment
Court orders
#- 1.The Applicant's Notice of Motion dated 8th May 2020 is denied and dismissed with costs to the Respondent.
- 2.The Applicant shall prepare, file and serve his record of Appeal within 45 days.
- On appeal from
- Nyahururu Chief Magistrate's Court (CMC ELC)
- 56 of 2018
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joel Ndiritu Ndiang’ui v Ann Kabura Chomba [2020] KEELC 1725 (KLR)", Case Analysis (2020). Nyahururu CMC ELC Appeal (Notice of Motion dated 8th May 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1725/eng@2020-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.