Fredrick Maritim & 3 others v Ekegoro Property Management Ltd & another [2020] KEELC 2918 (KLR)
The bottom line
#Kenya's High Court paused an eviction to allow appeal, ruling that substantial loss matters most and stay applications need not first go through the trial court.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss as a condition for stay pending appeal
The applicants demonstrated they will suffer substantial loss because an eviction notice had been issued and the trial record showed they had some form of interest in the suit properties.
The respondents' own witnesses testified at trial that the applicants had encroached on the parcel and were using it for storage, and the trial court granted a permanent injunction against them. This indicated the applicants had an interest they would lose if the decree was enforced. The court noted it is not for it to determine the merit of the appeal at that stage.
Failure to first seek stay before the trial court
Not fatal; the rule permits the appellate court to consider the application even where the trial court has not dealt with it.
The court acknowledged it would be prudent and tidier to first seek stay from the court from which the appeal is preferred, but held that Order 42 rule 6(1) expressly allows the court to which an appeal is preferred to consider a stay application regardless, so it is not mandatory to go to the trial court first.
Error in the date of the judgment referenced in the application
A minor error citing the judgment date as 28th rather than 27th August 2019 could not defeat the application since no prejudice was occasioned.
All parties were aware of the correct date of judgment, and the overriding objective of doing substantive justice meant the minor error should not stall the application. No prejudice was occasioned to the respondents by that mistake.
Security for the due performance of the decree
Deposit in the subordinate court of the party and party costs of the suit was adequate security.
The respondents argued no security had been deposited or proposed. The court considered it adequate that the applicants deposit such sum as would be determined as the party and party costs of the suit, with the stay lapsing automatically on default.
Legal principles established
#- Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal.
- Order 42 rule 6(1) of the Civil Procedure Rules does not make it mandatory that stay be first sought before the trial court.
Court orders
#- 1.Stay of execution of the judgment and decree of the Chief Magistrate's Court at Nakuru delivered on 27th August 2019 in CMCC No. 1183 of 2017 granted pending hearing and determination of the appeal
- 2.Stay conditional on the applicants depositing in the subordinate court such sum as will be determined as the party and party costs of the suit, within 21 days of the costs being determined; in default the stay orders to automatically lapse
- 3.Stay orders to remain in force for only 8 months from the date of delivery of the ruling if the applicants timeously comply, unless otherwise extended
- 4.Costs of the application to be borne by the applicant
- On appeal from
- Chief Magistrate's Court at Nakuru
- CMCC No. 1183 of 2017 Ekegoro Property Management Ltd & another v Fredrick Maritim & 7 others
- Jurisdiction invoked
- Order 42 rule 6 (1) and (2) of the Civil Procedure Rules, 2010 (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fredrick Maritim & 3 others v Ekegoro Property Management Ltd & another [2020] KEELC 2918 (KLR)", Case Analysis (2020). CMCC No. 1183 of 2017 (appeal from) - Notice of Motion dated 16th September 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2918/eng@2020-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.