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ELCPartially AllowedNot stated in judgment (concerns appeal from Nyeri CM EC No. 27 of 2018)· [2020] KEELC 2632 (KLR)

County Government of Nyeri v Benson Warui & another [2020] KEELC 2632 (KLR)

Environment and Land Court
15 May 2020
3,390 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to halt a money judgment against a county government for weak reasons, but gave it 45 more days to file its appeal.

What this practically means

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Executive summary

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The Applicant, represented by Benjamin W Gachichio and described as a County Government, moved the Environment and Land Court at Nyeri by Notice of Motion dated 22nd January 2019 under Section 79G of the Civil Procedure Act and Order 42 Rule 6(1) and (6) of the Civil Procedure Rules, seeking stay of execution of the judgment of Hon R. Kefa in Nyeri CM EC No. 27 of 2018 delivered on 19th November 2018, in which Ksh 1,300,000 was awarded to the 1st Respondent, and leave to appeal out of time. The 1st and 2nd Respondents opposed, arguing inordinate delay, failure to demonstrate substantial loss, and lack of security. The court identified three conditions under Order 42 Rule 6(2): substantial loss, absence of unreasonable delay, and provision of security. It held that the Applicant failed to prove substantial loss, since the 1st Respondent, a retired teacher and businessman with a source of income, could refund the decretal sum, and poverty does not deny a litigant the fruits of judgment. The delay of about two months was found inordinate. On security, the court accepted that as a County Government the Applicant was exempt under Order 42 Rule 8. Stay was accordingly dismissed. On extension of time, applying Thuita Mwangi v Kenya Airways Ltd and Leo Sila Mutiso, and finding no demonstrated prejudice to the Respondents, the court extended time to appeal by 45 days, with directions on supply of documents and an automatic lapse if unused. Costs were ordered to be in the cause.

Key legal issues

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01

Whether the Applicant demonstrated substantial loss warranting stay of execution

Holding

No - the Applicant failed to discharge the burden of proving the decree holder would be unable to refund the decretal sum; financial ability of the decree holder alone is not a reason for allowing stay

Reasoning

The Court of Appeal in Mukuma v Abuoga defines substantial loss as what must be prevented by preserving the status quo. The Applicant's apprehension rested solely on the 1st Respondent being a retired teacher and businessman with no proof of resources. The court held that the 1st Respondent had a source of income and could refund the decretal sum, and that poverty is not a ground to deny a litigant the fruits of judgment. The Applicant thus failed to prove substantial loss.

p. 4
02

Whether the Application for stay was made without unreasonable delay

Holding

No - the delay of about two months after judgment was inordinate

Reasoning

Judgment was delivered on 19th November 2018 and the application and Memorandum of Appeal were filed on 22nd January 2019. The Applicant's explanation - that the December holiday intervened and the legal committee convened only on 15th January 2019 - did not persuade the court. The judge found the delay inordinate in the circumstances, so the second condition under Order 42 Rule 6(2) also failed.

p. 4
03

Whether leave should be granted to appeal out of time under Section 79G

Holding

Yes - the Respondents demonstrated no prejudice, so the discretion was exercised in the Applicant's favour with a 45-day extension

Reasoning

Applying Thuita Mwangi v Kenya Airways Ltd and Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court considered the length of and reason for delay and the prejudice to the Respondents. The Respondents did not demonstrate what prejudice they would suffer if the extension was granted. Balancing the competing interests, the court exercised its discretion in favour of the Applicant, extending time by 45 days subject to conditions, with the window lapsing automatically if unused.

p. 5

Legal principles established

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  • Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory
  • Poverty or lesser means of a decree holder does not necessarily justify a stay of execution
  • The general rule is that the Court ought not to deny a successful litigant the fruits of his judgment save in exceptional circumstances
  • Factors for extension of time are the length of delay, the reason for the delay, the chances of the Appeal succeeding and the degree of prejudice to the Respondent
  • A County Government is exempt from providing security for deposit of the decretal sum under Order 42 Rule 8

Court orders

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  1. 1.The time within which the Applicant ought to have filed their Appeal is extended by forty-five (45) days from the date of this ruling
  2. 2.If the Applicant has not been supplied with the documents required to prepare the record of Appeal, the Applicant's counsel to liaise with the Deputy Registrar of this Court and ensure that the same are supplied within thirty (30) days of this Order
  3. 3.If the Applicant does not file the Appeal within the time stipulated in (i) above, the window granted to file the Appeal shall automatically lapse
  4. 4.Costs be in Cause

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 42 Rule 6(1), (2), (6), (8)

Cases cited (14)

  • Mombasa County Government vs Pauline Wanjiku Kageni
    [2017] eKLR
  • Selestica Limited vs Gold Rock Development
    Civil Appeal No. 48 of 2015
  • Jaber Moshen Ali & Another vs Priscillah Boit & Another
    [2014] eKLR
  • Kenya shell Limited vs Benjamin Karuga Kibiru & Another
    Civil Application No. NAI 97 OF 1986
  • Kenya Hotel Properties Limited vs Willesden Investments Limited
    Civil Application No. 322 of 2006 (U/R 178/06)
  • Ethics and Anti-Corruption Commission vs Nderitu Wachira & 2 Others
    Misc Application No. 19 of 2015
  • Karunguru Estate Limited vs Beatrice Wamere Karanja
    [2012]
  • Peter Maina Mwangi vs Nancy Murthoni Nyaruai
    [2017] eKLR
  • Mukuma V Abuoga
    (1988) KLR 645
  • Justus Kyalo Musyoka v John Kivungo
    [2019] eKLR
  • Caneland Ltd & 2 Others (supra)
  • Thuita Mwangi vs Kenya Airways Ltd
    [2003] eKLR
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No Nai 255 of 1997 (unreported)
  • Haywood vs Cope
    (1858) 25 BEAV 140
On appeal from
Chief Magistrate's Court, Nyeri
Nyeri CM EC No. 27 of 2018
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Order 42 Rule 6(1) and (6) of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "County Government of Nyeri v Benson Warui & another [2020] KEELC 2632 (KLR)", Case Analysis (2020). Not stated in judgment (concerns appeal from Nyeri CM EC No. 27 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2632/eng@2020-05-15

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