Charles Munga Kipsang v Patrick Telewa Nabiswa & another [2021] KEELC 224 (KLR)
The bottom line
#A Kenyan court refused to pause a land judgment because the defendant showed no real evidence of loss and had transferred the land mid-suit.
What this practically means
#Executive summary
#Key legal issues
#Conditions for grant of stay of execution pending appeal under Order 42 Rule 6(2)
The applicant must satisfy all conditions: sufficient cause, substantial loss, security, and application without unreasonable delay. The 2nd defendant satisfied sufficient cause, delay and offered security but failed on substantial loss, so the application failed
Order 42 Rule 6(2) requires cumulative satisfaction of the conditions. The applicant filed a Notice of Appeal timeously and the application within reasonable delay, and offered to comply with terms. However, the cornerstone requirement of substantial loss was not demonstrated with tangible evidence; the applicant merely asserted loss and produced no evidence that the plaintiff would dissipate the suit land.
Whether the transfer of the suit land during the pendency of the suit disentitled the 2nd defendant to equitable relief
Yes. Having transferred the land during the proceedings to frustrate the plaintiff's claim, the 2nd defendant lacked clean hands
The stay remedy is discretionary and equitable. The Court had already found in the judgment that the 2nd defendant transferred the suit parcels in November 2014 in the course of proceedings, an act done to frustrate the plaintiff's claim. Such conduct disentitles the applicant from invoking the Court's equitable discretion in his favour.
Whether the 2nd defendant's further submissions filed without leave could be relied upon
No. They were expunged from the record as they were filed without leave and behind the plaintiff's back
Directions had closed submissions and set a ruling date. Counsel filed a 'reply to submissions' without leave, breaching the Court's directions and the duty to assist the Court under Section 1A(3) of the Civil Procedure Act. Parties are entitled to a level playing field; such documents must be sneaked in no more and were accordingly expunged.
Legal principles established
#- Substantial loss is the cornerstone of an application for stay of execution and must be demonstrated with evidence, not mere assertion
- Submissions are not evidence upon which a Court can base its decision
- A party seeking an equitable remedy such as stay must approach the Court with clean hands
- Parties must not sneak documents into proceedings without leave of the Court
Court orders
#- 1.The 2nd defendant's further submissions filed on 21st September 2021 are expunged from the record
- 2.The Notice of Motion dated 18th August 2021 seeking stay of execution is dismissed
- 3.Costs of the application to the plaintiff
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63 of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Munga Kipsang v Patrick Telewa Nabiswa & another [2021] KEELC 224 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/224/eng@2021-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.