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ELCPartially AllowedELLC Appeal (arising from CMELC NO 31 of 2019)· [2020] KEELC 2596 (KLR)

Committee Members - Ngoe Buying Centre & another v Ephantus Ngethe Gichuki [2020] KEELC 2596 (KLR)

High Court of Kenya (Environment and Land Division, appellate jurisdiction)
14 May 2020
JKJ G Kemei
1,431 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court paused a lower court ruling so tea farmers could keep delivering their perishable crop while their appeal is decided.

What this practically means

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Executive summary

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This was a notice of motion dated 18 February 2020 brought under Order 42 Rule 6(1) and Order 50 Rule 1 of the Civil Procedure Rules seeking stay of execution of orders made by the Principal Magistrate in CMELC No 31 of 2019 on 4 February 2020, pending the hearing and determination of an appeal. The orders below had restrained the Applicants from collecting, distributing or using the Ngoe Tea Buying Centre. The Applicants, representing 36 tea growers delivering green leaf through the buying centre, argued that their produce is perishable and would go to waste or wither if they were forced to deliver to distant centres; that the Respondent lacked locus to represent the deceased registered owner of the suit land; and that damages would not adequately compensate them. They also offered to abide by security terms. The Respondent did not oppose the application despite service. The court framed two issues: whether stay should be granted and who bears the costs. Applying Order 42 Rule 6, the judge found the application filed 14 days after the ruling was timeous; that substantial loss had been established since the perishable crop would be wasted and the unopposing Respondent had shown no capacity to compensate; and that no security need be imposed given the absence of opposition. The court allowed the motion, staying the ruling of 4 February 2020 pending the appeal, with the Applicants to bear the costs of the application.

Key legal issues

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01

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

Holding

The application filed 14 days after the ruling was timeous

Reasoning

The ruling was delivered on 4/2/2020 and the motion filed on 18/2/2020, a 14-day interval which the court found to be timeous and without any delay, satisfying the first limb of Order 42 Rule 6(2).

p. 2
02

Whether substantial loss had been demonstrated

Holding

Yes - the tea crop is perishable and the loss would be irreversible and uncompensatable

Reasoning

The 1st Applicant represents 36 tea growers delivering green leaf to a buying centre. Restraining collection means the perishable produce would go to waste or wither while ferried to distant centres; the Respondent filed no response indicating capacity to compensate, so the loss cannot be reversed.

p. 2
03

Whether security for due performance of the decree should be imposed

Holding

No security imposed because the application was unopposed

Reasoning

Although the Applicants expressed willingness to abide by security terms as the court might set, the court found no necessity to impose security given the Respondent did not oppose the application.

p. 2

Legal principles established

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  • Stay of execution requires that the application be brought without delay, that substantial loss may result unless stay is granted, and that security for due performance be provided
  • Stay of execution is an equitable relief exercised at the court's discretion and must be exercised judiciously

Court orders

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  1. 1.The Ruling of the Hon Learned Principal Magistrate issued on the 4/2/2020 in CMELC NO 31 of 2019 be and is hereby stayed pending the hearing and determination of the Appeal
  2. 2.The costs of the application shall be met by the Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 50 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (1)

  • Giella Vs Cassman Brown EA 358
    EA 358 (1973)
On appeal from
Principal Magistrate's Court
CMELC NO 31 of 2019
Jurisdiction invoked
Order 42 Rule 6(1) and Order 50 Rule 1 of the Civil Procedure Rules (appellate jurisdiction over a subordinate court decision)

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, "Committee Members - Ngoe Buying Centre & another v Ephantus Ngethe Gichuki [2020] KEELC 2596 (KLR)", Case Analysis (2020). ELLC Appeal (arising from CMELC NO 31 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2596/eng@2020-05-14

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