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ELCPartially AllowedNotice of Motion Application dated 2nd October 2019 ( Appeal from Thika Chief Magistrate's Court, Judgment of 8th February 2019 by M.W Wanjala, SRM )· [2020] KEELC 2104 (KLR)

Magdalene Wanjiku Ndung’u v Jane Njoki Njuguna [2020] KEELC 2104 (KLR)

High Court of Kenya at Thika
15 June 2020
1,817 words in judgment
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The bottom line

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Kenya's High Court halted the execution of a land judgment, protecting an appellant from eviction and title cancellation until her appeal is heard.

What this practically means

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Executive summary

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This ruling of the High Court at Thika (L. Gacheru, J) determined a Notice of Motion dated 2nd October 2019 by the Appellant/Applicant, Magdalene Wanjiku Ndungu, seeking stay of execution of a judgment delivered on 8th February 2019 by M.W Wanjala, SRM, pending the hearing and determination of her appeal. The subordinate court had allowed the Respondent's claim for cancellation of the Applicant's title to L.R Gatuanyanga/Ngoliba/Block 1/162. The Applicant, who had occupied and cultivated the land since purchasing it in 2000, argued she faced imminent eviction, having been served with a decree, and that her appeal with high chances of success would be rendered nugatory. The Respondent opposed, contending the Applicant had been evicted under a court order in Civil Suit No. 286 of 2006, had made a similar unsuccessful application in the lower court, and was merely seeking to deny the Respondent the fruits of her judgment. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and established authorities, the Court found the Applicant would suffer substantial loss through eviction and cancellation of title; that there was no inordinate delay since the decree issued on 8th August 2019 alerted her to imminent execution; and that no security was merited as none was specifically proposed. The application was allowed entirely, stay of execution was granted pending appeal, and the parties were directed to prepare the appeal expeditiously. The ruling was delivered online pursuant to COVID-19 directives, with the parties waiving compliance with Order 21 rule 1. No express costs order was made.

Key legal issues

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01

Substantial loss

Holding

The Applicant demonstrated substantial loss because execution would result in eviction and cancellation of her title, rendering the appeal nugatory if successful

Reasoning

The decree would cancel the Applicant's title and register the property in the Respondent's name, and serve the purpose of evicting her. If she lost possession at this stage, a successful appeal would serve no purpose. The Court balanced this against the principle that courts should not deprive successful litigants of the fruits of judgment, but found the prospect of eviction and title cancellation amounted to substantial loss.

p. 3
02

Unreasonable delay

Holding

There was no inordinate delay; the application followed the issuance of the decree on 8th August 2019

Reasoning

Although judgment was delivered on 8th February 2019 and the Memorandum of Appeal filed on 22nd February 2019, an earlier stay application in the lower court was determined on 6th June 2019 on the basis of no imminent danger. The decree issued on 8th August 2019 indicated imminent danger of execution, justifying the filing of the instant application on 2nd October 2019.

p. 3
03

Security for due performance of the decree

Holding

No security was ordered as none was specifically brought forth, the matter being discretionary

Reasoning

The Court treated security as a discretionary condition. Since no specific sum was proposed by the Applicant, the Court declined to fix any security at that stage, finding the stay order itself would protect and preserve the suit property.

p. 3

Legal principles established

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  • The discretion to grant stay of execution pending appeal must be exercised judicially and is governed by the conditions in Order 42 Rule 6(2): substantial loss, no unreasonable delay, and security
  • The purpose of stay of execution pending appeal is to preserve the subject matter in dispute so the appeal, if successful, is not rendered nugatory

Court orders

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  1. 1.Stay of execution of the judgment dated and delivered on 8th February 2019 by the Learned Magistrate (M.W Wanjala, SRM) pending the hearing and determination of the Appeal
  2. 2.The parties to prepare the Appeal for hearing expeditiously

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (6)

  • Masisi Mwita Vs Damaris Wanjiku Njeri
    Civil Appeal No.107 of 2015 (2016) eKLR
  • Halal & Another Vs Thornton & Turpin Ltd
  • Hassan Guyo Wakalo Vs Straman EA Ltd
    (2013)
  • Canvass Manufacturers Ltd Vs Stephen Reuben Karunditu
    Civil Application No.158 of 1994, (1994) LLR 4853
  • Stephen Wanjohi Vs Central Glass Industries Ltd
    Nairobi HCC No.6726 of 1991
  • Consolidated Marine Vs Nampijja & Another
    Civil App. No.93 of 1989 (Nairobi)
On appeal from
Subordinate Court (Magistrate's Court at Thika)
not stated (decree arising from judgment of 8th February 2019; referenced Civil Suit No. 286 of 2006 in earlier eviction proceedings)
Jurisdiction invoked
Appellate jurisdiction over subordinate court under Order 42 Rule 6(2) of the Civil Procedure Rules (application for stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Magdalene Wanjiku Ndung’u v Jane Njoki Njuguna [2020] KEELC 2104 (KLR)", Case Analysis (2020). Notice of Motion Application dated 2nd October 2019 ( Appeal from Thika Chief Magistrate's Court, Judgment of 8th February 2019 by M.W Wanjala, SRM ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2104/eng@2020-06-15

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