Elijah B. Wamburi & 2 others v Joshua Wilson Muthioma & 6 others [2020] KEELC 1893 (KLR)
The bottom line
#A Kenyan court refused to pause enforcement of a land judgment because the applicants proved no loss, offered no security, and filed no draft appeal.
What this practically means
#Executive summary
#Key legal issues
#Capacity of a deponent who is not a party or trustee to swear an affidavit in support
The affidavit did not prejudice the Respondents as the deponent rendered himself amenable to cross-examination
The court noted Order 19 Rule 3(1) confines affidavits to facts the deponent can prove from own knowledge. Though Kigotho was not enjoined to the pleadings, by swearing on behalf of the Appellants he made himself a witness for cross-examination on facts within his knowledge, and the court found no prejudice to the Respondents. The dismissal instead rested on failure to meet the stay conditions.
Whether the Applicants demonstrated substantial loss
They failed to avail evidence of irreparable loss; Respondents remained in possession of the suit land holding church services
The court held the purpose of stay is to preserve the subject matter so the appeal is not rendered nugatory. The burden was on the Applicants to demonstrate the specific substantial loss that execution would cause. The Respondents' evidence that they occupied the land for prayers meant no loss would flow. No evidence of irreparable loss was adduced.
Whether the application was brought without undue delay
There was no contestation; the second condition was satisfied
The court recorded that there was no contestation on delay, judgment having been delivered on 19th November 2019 and the application filed on 16th December 2019. However, because the three conditions under Order 42 Rule 6(2) are conjunctive and must all be met simultaneously, satisfaction of the delay condition alone could not save the application.
Whether the Applicants offered security
No security or proposal for due performance was offered; the third condition failed
Under Order 42 Rule 6(2)(b), the Applicant must offer such security for due performance of the decree as may ultimately be binding. In this matter no security or proposal had been offered and no commitment exhibited. Relying on Equity Bank Ltd v Taiga Adams, offering no security is a mandatory tenet whose failure defeats the application. The Applicants were silent on security.
Legal principles established
#- The three conditions for stay pending appeal under Order 42 Rule 6(2) are conjunctive and must all be met simultaneously
- Substantial loss is the cornerstone of a stay application and must be proved with specific details, not merely asserted
- Whether an appeal is arguable is determined from a Memorandum of Appeal, not from supporting affidavits or submissions
Court orders
#- 1.The Applicants' application dated 16th December 2019 seeking stay of execution is dismissed
- 2.Costs of the application to the Respondents
- On appeal from
- Environment and Land Court
- ELC No. 68 of 2017
- Jurisdiction invoked
- Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Milele Homes Limited v Mambomoto Homes Limited[2023] KEELC 16942 (KLR)27 Apr 2023
Cite this brief
#Cite this brief
Caselaw, "Elijah B. Wamburi & 2 others v Joshua Wilson Muthioma & 6 others [2020] KEELC 1893 (KLR)", Case Analysis (2020). ELC No. 68 of 2017 (application dated 16th December 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1893/eng@2020-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.