Gladys Kemunto Aunga v Agnes Kemunto Mose [2020] KEELC 3139 (KLR)
The bottom line
#The Environment and Land Court in Kisii refused to pause a Rent Restriction Tribunal eviction because the tenant appealed too late and proved no concrete loss.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to appeal out of time was obtained
No valid appeal existed because the order annexed as GKA3 granted stay of execution only and did not expressly grant leave to appeal out of time
Judgment was delivered on 24th April 2019 and the appeal lodged on 24th July 2019, beyond the 30 days prescribed by section 79G of the Civil Procedure Act. Although the applicant alleged she obtained leave from the Tribunal, the order exhibited only granted a stay of execution. The court therefore agreed with the respondent that no valid appeal was before it.
Whether the applicant demonstrated substantial loss
The applicant failed to demonstrate tangible loss; fear of eviction from premises occupied since 2005 was insufficient
Relying on James Wangalwa and Machira, the court held that execution is a lawful process and does not by itself constitute substantial loss. Beyond her desire to continue staying in the suit premises, the applicant did not show what tangible or pecuniary loss she would suffer, so this condition failed.
Whether the application was made without undue delay
The application, filed three months after judgment, was not made without unreasonable delay
Order 42 Rule 6(2) requires that the application be made without unreasonable delay. The application was filed on 23rd July 2019, three months after the judgment of 24th April 2019. The court found the delay unreasonable and the condition unsatisfied.
Whether the applicant furnished security
The applicant failed to demonstrate willingness to furnish security for costs
Furnishing security is a prerequisite for stay. Apart from stating she had paid rent up to the year 2020, the applicant did not demonstrate by affidavit any willingness to furnish security for the due performance of the decree, and this condition was therefore not met.
Legal principles established
#- The process of execution, by itself, does not amount to substantial loss for purposes of an application for stay of execution pending appeal
- An applicant for stay must show specific and tangible loss; mere assertion of substantial loss is insufficient
- The conditions for stay under Order 42 Rule 6 are cumulative and cannot be severed
Court orders
#- 1.Notice of Motion dated 23rd July 2019 seeking stay of execution pending appeal dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Rent Restriction Tribunal
- RRT Case No. 11 of 2018
- Jurisdiction invoked
- Appeal from the Rent Restriction Tribunal; application under Order 42 Rule 6 of the Civil Procedure Rules, 2010 for stay of execution pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Joseph Mutua Zakayo v County Government of Makueni ( others [2021] KEELC 4407 (KLR)[2021] KEELC 4407 (KLR)9 Feb 2021
Cite this brief
#Cite this brief
Caselaw, "Gladys Kemunto Aunga v Agnes Kemunto Mose [2020] KEELC 3139 (KLR)", Case Analysis (2020). Notice of Motion dated 23rd July 2019 (appeal from RRT Case No. 11 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3139/eng@2020-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.