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ELCAllowedNot stated in judgment (Notice of Motion dated 4/11/2019)· [2020] KEELC 2466 (KLR)

Patrick Nganga v Gerishon Ngure Mangara; John Muchiri Gachihi (Third Party) [2020] KEELC 2466 (KLR)

Environment and Land Court
14 May 2020
2,999 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Applicant moved the Environment and Land Court by Notice of Motion dated 4 November 2019 seeking stay of execution of the Court's judgment delivered on 3 October 2019 and the resultant decree issued on 15 October 2019, pending an intended appeal to the Court of Appeal. The Applicant deposed that the Respondent had commenced execution by extracting the decree, issuing a 14-day notice to vacate the suit land, threatening demolition of permanent buildings valued at Kshs. 2.8 Million, and demanding a cheque for Kshs. 500,000/- in decretal damages. The Respondent opposed the motion, contending that no competent appeal had been filed under Order 42 of the Civil Procedure Rules, that no arguable appeal or substantial loss was demonstrated, and that no security had been offered, suggesting Kshs. 500,000/- as adequate security. Framing two issues - whether stay should be granted and who bears the costs - the Court applied Order 42 Rule 6. It found the application filed 30 days after judgment was brought without delay; held that a Notice of Appeal suffices for a stay application and declined to comment on the merits of the intended appeal; found substantial loss proved on the Machira standard given the permanent buildings on the land; and held that the Court, not the parties, fixes the nature and quantum of security. Balancing the competing rights of the decree holder and the intending appellant, the Court allowed the motion on terms: stay granted subject to the appeal being filed within 90 days (extended for the COVID-19 pandemic), security of Kshs. 400,000/- deposited in a joint interest-earning account or by bank guarantee within 90 days, the stay lapsing on default, and costs of the application awarded to the Respondent, to be met by the Applicant.

Key legal issues

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01

Whether the application for stay of execution was brought without unreasonable delay

Holding

The Court found no delay, the application having been filed 30 days after judgment.

Reasoning

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.

p. 3
02

Whether the Applicant demonstrated substantial loss

Holding

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.

Reasoning

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.

p. 3
03

Whether the Applicant was required to have offered security before the application

Holding

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.

Reasoning

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.

p. 4
04

Whether the absence of a filed appeal or arguable appeal grounds defeated the application

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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. 3.If the Applicant fails to comply with the security order, the stay shall lapse
  4. 4.Costs of the application to be met by the Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 42
  • Court of Appeal Rules, 2010Rule 75(2)
  • Court of Appeal Rules, 2010Rule 82

Cases cited (8)

  • James Wangalwa & Anor Vs Agnes Naliaka Chesete (2012) eKLR
    (2012) eKLR
  • Silvertein Vs Chesoni (2002) KLR
    (2002) KLR
  • Global Tours Travel WC No 43 of 2000 (UR)
  • Machira T.A Machira & Co. Advocates vs. East African Standard (No.2) (2002) KLR 63
    (2002) KLR 63
  • John Gacunja Njoroge –Vs – Joseph Njoroge (supra)
  • Kiplagat Kotut v Rose Jebor Kipngok [2015] eKLR
    [2015] eKLR
  • Kenya Tanzania Uganda Leasing Co. Ltd v Mukenya Ndunda [2013] eKLR
    [2013] eKLR
  • Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others [2012] eKLR
    [2012] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (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 (2)

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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, "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.