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ELCDismissed· [2020] KEELC 2564 (KLR)

Hanah Njeri Kogi & another v Samuel Munyua Gichaga [2020] KEELC 2564 (KLR)

Environment and Land Court
6 May 2020
MOM.C. Oundo
2,094 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause a land eviction order because the applicants proved nothing and offered no security, so they must vacate while appealing.

What this practically means

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Executive summary

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The Applicants moved the Environment and Land Court at Nyahururu by Notice of Motion dated 6th November 2019 seeking stay of execution of the court's judgment of 29th October 2019, which had issued a mandatory and permanent injunction requiring both Applicants to vacate the suit parcel within 90 days, pending an intended appeal. The application, supported by the affidavit of the deceased 1st Applicant, was opposed by the Respondent, who argued that no substantial loss would be suffered since the 1st Applicant had another parcel where his family lived and the 2nd Applicant had vacated the suit land in 2010. During the pendency of the application the 1st Applicant died and his wife was substituted, by consent, under letters of administration ad litem. The court framed two issues: whether the conditions for stay under Order 42 Rule 6(2) of the Civil Procedure Rules were satisfied, and what orders to make. It found the application was filed without undue delay, but that the Applicants failed to prove substantial loss - the claim that the Respondent had sold 90% of his share was unsupported by evidence - and that no security had been offered. Invoking Article 159(2)(d) to cushion the defective motion that cited no enabling provision, the court declined to exercise its discretion, dismissed the application with costs to the Respondent, leaving the judgment and the 90-day vacation order free for execution.

Key legal issues

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01

Whether substantial loss would result to the Applicants if stay was not granted

Holding

No substantial loss was demonstrated; the claim that the Respondent had sold 90% of his share was unsupported by evidence and no irreparable loss was proved.

Reasoning

The court held it incumbent on the 1st Applicant to demonstrate the kind of substantial loss he would suffer. The assertion that the Respondent had disposed of 90% of his share and that the appeal would be rendered nugatory was not backed by evidence. The court applied the qualitative concept of substantial loss from Mukuma v Abuoga and Tropical Commodity Suppliers, finding the application failed on this ground.

p. 3
02

Whether the application was brought without undue delay

Holding

The application filed about a week after judgment was found to have been brought without undue delay.

Reasoning

The judgment was delivered on 29th October 2019 and the application filed on 6th November 2019. The court found the delay of about one week did not amount to undue delay, satisfying the second condition under Order 42 Rule 6(2). However, this alone could not save the application given failure of the substantial loss and security conditions.

p. 3
03

Whether the Applicant offered security for the due performance of the decree

Holding

The Applicant failed to indicate willingness to furnish security as required by Order 42 Rule 6(2)(b).

Reasoning

The third condition requires the applicant to give such security as the court orders for due performance of the decree. The court noted the Applicant had not indicated any willingness to furnish security, so this condition was also not met, reinforcing the dismissal of the motion.

p. 3

Legal principles established

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  • An applicant for stay of execution must demonstrate substantial loss, file without unreasonable delay, and offer security; failure on any condition disentitles the applicant.

Court orders

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  1. 1.The Applicants' Notice of Motion dated 6th November 2019 seeking stay of execution of the judgment delivered on 29th October 2019 is denied and dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure ActSection 1A(2)
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (5)

  • Bashir Godana vs Fatuma Godana Tupi
    [2018] eKLR
  • Tropical Commodity Suppliers Limited
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    [2012] eKLR
  • Jane Jeptoo Sawe vs Estate of Sylvester Kimagut Sang
    [2016] eKLR
  • Mukuma V Abuoga
    (1988) KLR 645
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act; Article 159(2)(d) of the Constitution invoked to cure the defective application

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, "Hanah Njeri Kogi & another v Samuel Munyua Gichaga [2020] KEELC 2564 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2564/eng@2020-05-06

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