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ELCPartially AllowedKajiado CMCC No. 300 of 2013 (appeal arising therefrom; application dated 25th March, 2019)· [2020] KEELC 3802 (KLR)

Rosaline Njeri Ndungu v Robert James Githungo Maina & another [2020] KEELC 3802 (KLR)

High Court of Kenya
3 February 2020
COCHRISTINE OCHIENG
1,463 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Kajiado paused execution of a land judgment pending appeal, ruling that preserving the land itself is enough security.

What this practically means

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Executive summary

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This was an interlocutory application by the Appellant, Rosaline Njeri Ndungu, seeking a stay of execution of the judgment of 28th November 2018 and decree of 11th December 2018 in Kajiado CMCC No. 300 of 2013 (Robert James Githungo Maina v Keziah Wairimu Zacharia & Another), pending her appeal. The lower court had held that Ngong/Ngong/57597 belonged to the 1st Respondent and Ngong/Ngong/57598 to the Appellant, and directed the Appellant to surrender title to parcel 57597. The Appellant, who claimed to have purchased parcel 57597 from the 2nd Respondent and paid the full purchase price, argued she would suffer substantial loss, that the 1st Respondent had already proclaimed her household goods, and that her appeal had high chances of success; she offered security. The 1st Respondent opposed, arguing the appeal was hopeless, no security had been provided and no irreparable damage shown. Applying Order 42 Rule 6(2) and the principles in Butt v Rent Restriction Tribunal, the court found the appeal raised triable issues, that the Appellant was the registered proprietor of the suit land, that execution would render the appeal nugatory, that the application was filed without unreasonable delay, and that preservation of the land sufficed as security. The application was allowed with a stay issued, the Appellant restrained from dealing with the suit land, and costs in the cause.

Key legal issues

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01

Whether the conditions in Order 42 Rule 6(2) for stay of execution pending appeal were met

Holding

The application satisfied the conditions: substantial loss was established, the application was filed without unreasonable delay, and preservation of the suit land sufficed in lieu of security deposit

Reasoning

The court noted the Appellant is the registered proprietor of the suit land and the 1st Respondent had proclaimed her household goods. Execution before the appeal would render the appeal nugatory. The 1st Respondent gave no indication he could re-transfer the land if the appeal succeeded. Filing was prompt and preservation of the land served as adequate security.

p. 2
02

Whether the appeal was arguable

Holding

The appeal raised triable issues because the Appellant is the registered proprietor of the suit land

Reasoning

A perusal of the Memorandum of Appeal showed triable issues, since the Appellant was the registered proprietor of the suit land and execution (proclamation of household goods) had already commenced, heightening the risk of rendering the appeal nugatory.

p. 2

Legal principles established

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  • No order for stay of execution shall be made unless substantial loss is shown, the application was made without unreasonable delay, and security for due performance has been given
  • Stay is a discretionary power to be exercised so as not to render an appeal nugatory

Court orders

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  1. 1.An order staying execution of the judgment delivered on 28th November, 2018 and decree dated the 11th December, 2018 in Kajiado CMCC No. 300 of 2013
  2. 2.The Applicant restrained from interfering with the suit land including transferring, charging, wasting, leasing, alienating or putting up any new structures thereon
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 22 Rule 22; Order 42 Rule 6; Order 51

Cases cited (8)

  • Kotut V Rose Jebor Kipngok
    (2015) eKLR
  • Antoine Ndiaye V African Virtual University
    (2015) eKLR
  • Feisal Mahsen Saggaf & 3 Others V Green Gas Company Limited & Another
    (2015) eKLR
  • Housing Finance Company of Kenya V Sharok Kher Mohammed Ali Hirji & Another
    Civil Application No. 74 of 2015
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Micro Enterprises Support Programme Trust Registered Trustees V Mayford Savings & Credit Cooperative Society Limited & 5 Others
    Civil Case No. 81 of 2008
  • Kenya Shell Limited V Kibiru
    (1986) KLR 410
  • Socfinac Company Limited V Nelphat Kimotho Muturi
    (2013) eKLR
On appeal from
Kajiado Chief Magistrate's Court
CMCC No. 300 of 2013
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 22 Rule 22, Order 42 Rule 6 and Order 51 of the Civil Procedure Rules

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, "Rosaline Njeri Ndungu v Robert James Githungo Maina & another [2020] KEELC 3802 (KLR)", Case Analysis (2020). Kajiado CMCC No. 300 of 2013 (appeal arising therefrom; application dated 25th March, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3802/eng@2020-02-03

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