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ELCDismissedBungoma High Court Civil Appeal No 75 of 2019 (now ELC Appeal No 2 of 2020) - Notice of Motion dated 12th February 2020· [2020] KEELC 2064 (KLR)

Robert Njiriri Mbugua v Erustus Makari Watila, Simon Wamalwa & Moses Wakori Wamalwa (Environment and Land Appeal 2 of 2020) [2020] KEELC 2064 (KLR)

High Court of Kenya (Environment and Land Court jurisdiction, Bungoma)
18 June 2020
BOBoaz N. Olao
3,086 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landbuyer who was himself in breach of the sale agreement lost his bid to freeze the judgment against him while appealing, because he showed no real loss and offered no security.

What this practically means

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Executive summary

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The Appellant, who had agreed to purchase land parcel East Bukusu/North Kanduyi/464 from the 1st Respondent under an agreement dated 1st April 2011 for Kshs 1.5 million (of which Kshs 1.2 million was paid), moved the High Court by Notice of Motion dated 12th February 2020 seeking stay of execution of the decree in Bungoma CMCC No 480 of 2013 and a temporary injunction restraining the Respondents from interfering with the suit property pending his appeal. His suit in the magistrates' court had been dismissed and the Respondents' counter-claim allowed; his earlier stay application in the trial court was also dismissed on 5th February 2020. The 1st Respondent did not respond; the 2nd Respondent swore a replying affidavit asserting the Appellant was in possession earning rent, that the property was valued at Kshs 4.6 million, and that damages would adequately compensate the Appellant. The Court, applying Order 42 Rule 6(2) and the guiding authorities, held the application was timely but found no evidence of substantial loss and noted the Appellant had offered no security for due performance of the decree, a mandatory condition. On the injunction, the Court applied the Patricia Njeri and Giella principles, found damages adequate given the Appellant's alternative prayer for market-value compensation, and further held the Appellant, having defaulted on the balance of the purchase price, had not approached equity with clean hands. The motion was dismissed with costs to the 2nd and 3rd Respondents.

Key legal issues

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01

Stay of execution pending appeal under Order 42 Rule 6

Holding

Refused for failure to demonstrate substantial loss and failure to offer security

Reasoning

The application was filed without unreasonable delay, satisfying one condition. However, the Appellant offered only bare averments of substantial loss with no evidentiary support, and did not offer security for due performance of the decree, which Order 42 Rule 6(2) makes a mandatory condition. The High Court's discretion to grant stay is fettered by these statutory conditions, unlike the Court of Appeal's unfettered discretion.

p. 3
02

Temporary injunction pending appeal

Holding

Refused; damages adequate and Appellant lacked clean hands

Reasoning

Applying the Patricia Njeri guidelines and Giella principles, the Court found that the Appellant's own pleadings sought compensation at market value in the alternative, and the property was valued at Kshs 4.6 million, so an award of damages would suffice and the appeal would not be rendered nugatory. Further, the Appellant was himself in breach of the sale agreement, disqualifying him from an equitable remedy.

p. 4

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant stay pending appeal; without evidence of such loss, stay will not be granted
  • A party in breach of a contract cannot obtain an injunction to restrain breach by the other party (clean hands doctrine)

Court orders

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  1. 1.The Appellant's Notice of Motion dated 12th February 2020 is dismissed with costs to the 2nd and 3rd Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e)
  • Civil Procedure RulesOrder 42 Rule 6(1), (2) and (6)

Cases cited (8)

  • Kenya Shell Ltd v Benjamin K. Kibiru
    1982-88 1 KAR 1018
  • Machira t/a Machira & Co Advocates v East African Standard (No 2)
    2002 KLR 63
  • National Industrial Credit Bank v Aquinas Francis Wasike
    Civil Appeal No 238 of 2005 [2006 eKLR]
  • Vishram Halai & Another v Thornton & Turpin 1963 Ltd
    Civil Application No 15 of 1990 [1990 eKLR]
  • Patricia Njeri & Others v National Museum of Kenya
    [2004 eKLR]
  • Giella v Casman Brown Ltd
    1973 E.A. 358
  • Kenya Breweries Ltd & Anor v Washington Okeyo
    Civil Appeal No 332 of 2000 [2002 eKLR]
  • Ripples Ltd v Kamau Mucuha
    1992 eKLR
On appeal from
Bungoma Chief Magistrate's Court
Bungoma CMCC No 480 of 2013
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; Order 42 Rule 6(1)(2) and (6) of the Civil Procedure Rules; inherent powers of the High 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, "Robert Njiriri Mbugua v Erustus Makari Watila, Simon Wamalwa & Moses Wakori Wamalwa (Environment and Land Appeal 2 of 2020) [2020] KEELC 2064 (KLR)", Case Analysis (2020). Bungoma High Court Civil Appeal No 75 of 2019 (now ELC Appeal No 2 of 2020) - Notice of Motion dated 12th February 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2064/eng@2020-06-18

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