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ELCDismissedNotice of Motion dated 23rd July 2019 (appeal from RRT Case No. 11 of 2018)· [2020] KEELC 3139 (KLR)

Gladys Kemunto Aunga v Agnes Kemunto Mose [2020] KEELC 3139 (KLR)

Environment and Land Court
28 February 2020
1,464 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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By a Notice of Motion dated 23rd July 2019, the appellant sought a stay of execution of the judgment and decree of the Rent Restriction Tribunal in RRT Case No. 11 of 2018 delivered on 24th April 2019, pending appeal. She argued she was denied a chance to present her defence before the Tribunal, that judgment was delivered in her absence without notice, that she had occupied the premises for 15 years and paid rent up to 2020, and that eviction would cause her irreparable loss. The respondent opposed, contending she was heard by the Tribunal, declined to testify, was in rent arrears, filed her appeal out of time without leave, and would suffer no irreparable loss. The court framed two issues: whether leave to appeal out of time was obtained, and whether the prerequisites for stay were met. On the first, judgment was delivered on 24th April 2019 and the appeal filed on 24th July 2019, outside the 30-day period in section 79G of the Civil Procedure Act; the order exhibited (GKA3) granted a stay of execution only and did not grant leave, so no valid appeal was before the court. In the alternative, the court assessed the Order 42 Rule 6(2) conditions. On substantial loss, following James Wangalwa and Machira, mere fear of eviction and the prospect of execution do not amount to substantial loss, and no tangible loss was shown. The application, filed three months after judgment, was not made without undue delay, and no security for costs was offered. Since the conditions are cumulative and must all be met, the application was dismissed with costs to the respondent.

Key legal issues

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01

Whether leave to appeal out of time was obtained

Holding

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

Reasoning

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.

p. 1
02

Whether the applicant demonstrated substantial loss

Holding

The applicant failed to demonstrate tangible loss; fear of eviction from premises occupied since 2005 was insufficient

Reasoning

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.

p. 2
03

Whether the application was made without undue delay

Holding

The application, filed three months after judgment, was not made without unreasonable delay

Reasoning

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.

p. 2
04

Whether the applicant furnished security

Holding

The applicant failed to demonstrate willingness to furnish security for costs

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Notice of Motion dated 23rd July 2019 seeking stay of execution pending appeal dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure Actsection 79G
  • Civil Procedure Rules, 2010Order 42 Rule 6(2)

Cases cited (8)

  • Elena D. Korir vs Kenyatta University
    (2014) eKLR
  • Halal & another vs Thornton & Turpin Ltd
  • Hassan Guyo Wakalo vs Straman EA Ltd
    [11](2013)
  • James Wangalwa & Another V Agnes Naliaka Cheseto
    (2012) eKLR
  • Machira T/A Machira & Co Advocates V East African Standard
    (2002) 2 KLR 63
  • Exclusive Mines Limited & Another v Ministry of Mining & 2 others
    [2015] eKLR
  • M.O.M Amin Transporters Limited & another v Alexander Ndung'u Mbugua & 2 others
    [2017] eKLR
  • Equity Bank Limited v Taiga Adams Company Limited
    [2006] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.