Patrick Nganga v Gerishon Ngure Mangara; John Muchiri Gachihi (Third Party) [2020] KEELC 2466 (KLR)
The bottom line
#A Kenyan court paused eviction proceedings because the applicant moved quickly, showed real loss, and agreed to deposit Kshs. 400,000 as security.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for stay of execution was brought without unreasonable delay
The Court found no delay, the application having been filed 30 days after judgment.
The judgment was delivered on 3/10/19 and the motion filed on 4/11/19, a period of 30 days. The Court held this constituted no delay, satisfying the first requirement under Order 42 Rule 6(2)(a). The Court also noted that Order 42 Rule 4 deems an appeal to have been filed upon the giving of a Notice of Appeal, so the absence of a lodged appeal did not bar the application.
Whether the Applicant demonstrated substantial loss
The Court found substantial loss proved, being the permanent buildings on the suit land valued at Kshs. 2.8 Million which would be demolished upon eviction.
Applying the Machira case, which requires proof of specific details and particulars of loss, the Court found the Applicant had proved the loss he stands to suffer. The demand letter required the Applicant to vacate within 14 days, demolish structures and hand over possession, threatening the investment on the land and potentially rendering the appeal nugatory.
Whether the Applicant was required to have offered security before the application
The Court held that it is for the Court, not the parties, to order the nature and quantum of security; it fixed Kshs. 400,000/- as sufficient security.
Order 42 Rule 6(2)(b) vests the discretion on security in the Court to ensure it is not fettered. The Applicant expressed willingness to abide by the Court's conditions without disclosing quantum. The Court found Kshs. 400,000/- sufficient for the due performance of the decree and made the stay conditional on its provision within 90 days.
Whether the absence of a filed appeal or arguable appeal grounds defeated the application
The Court held that the merit of the intended appeal is not a consideration for the trial court and that a Notice of Appeal suffices.
The Court reasoned that under Order 42 Rule 4 an appeal is deemed filed upon giving of Notice of Appeal, and that the purpose of a stay application is to preserve the subject matter so the right of appeal is safeguarded. The Court declined to comment on the merits of the intended appeal, holding that this is not in its province having rendered the judgment.
Legal principles established
#- For one to succeed in an application for stay of execution, the application must have been brought without delay, substantial loss must be shown, and security for the due performance of the decree provided
- An intended appellant who has filed a Notice of Appeal may apply for stay of execution without waiting to lodge the full appeal
- The court balances the successful litigant's right to the fruits of judgment against the unsuccessful litigant's right of appeal being rendered nugatory, often through suitable security
Court orders
#- 1.Stay of execution of the judgment delivered on 3/10/19 and the resultant decree issued on 15/10/19 granted pending appeal, provided the appeal is filed within 90 days from the date of the ruling or such other time that the Registry will have officially opened its operations, given the ongoing COVID-19 Pandemic
- 2.The Applicant to provide security for the due performance of the decree in the sum of Kshs. 400,000/- within 90 days from the date of the ruling, to be deposited in an interest earning account in the joint names of both advocates of the parties or a bank guarantee of a similar amount
- 3.If the Applicant fails to comply with the security order, the stay shall lapse
- 4.Costs of the application to be met by the Applicant
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Bomet Technical Institute Limited t/a Lomu Investment v Ruto & 22 others; The County Government Of Bomet (Interested Party) (Environment & Land Case 78 of 2012) [2025] KEELC 3651 (KLR)[2025] KEELC 3651 (KLR)8 May 2025
- Emily Chesang v Barbara Chebet Moi & another [2020] KEELC 531 (KLR)[2020] KEELC 531 (KLR)3 Nov 2020
Cite this brief
#Cite this brief
Caselaw, "Patrick Nganga v Gerishon Ngure Mangara; John Muchiri Gachihi (Third Party) [2020] KEELC 2466 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 4/11/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2466/eng@2020-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.