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ELCAllowedNot stated on the face of the ruling (arising from Naivasha Chief Magistrate's Court Case No. 82 of 2018)· [2021] KEELC 255 (KLR)

Samuel Njoroge Kiarie v George Irungu Muya [2021] KEELC 255 (KLR)

High Court of Kenya
14 December 2021
3,798 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The High Court in Nakuru paused the execution of a Naivasha eviction and money judgment, letting the appellant keep his home pending appeal if he deposits Kshs. 400,000 in court within 45 days.

What this practically means

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Executive summary

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This ruling by L. A. Omollo, J of the High Court at Nakuru, delivered virtually on 14 December 2021, determined a Notice of Motion dated 27 September 2021 by the Appellant/Applicant, Samuel Njoroge Kiarie, seeking a stay of execution of the judgment and orders made on 22 September 2021 by Honourable Kennedy Bidali in Naivasha Magistrate's Court Case No. 82 of 2018, pending the hearing and determination of his appeal. The applicant, appearing in person, submitted that the suit property, plot 347 Ngomongo Gilgil, where he has lived with his family for 14 years, was at risk of sale and that the property was his matrimonial home; he denied receiving the purchase price. The Respondent, represented by counsel, opposed the application, submitting that the three conditions for stay - merit, prejudice and security - were unmet, that he had bought the property five years earlier and could not enjoy it, and proposed conditional stay terms including vacation of the property and a deposit of Kshs. 400,000. Framing two issues - whether the criteria for stay were met and costs - the court applied Order 42 Rule 6(2) of the Civil Procedure Rules, sections 1A and 1B of the Civil Procedure Act, and established authorities including Butt v Rent Restriction Tribunal, Shell Ltd v Kibiru and Vishram Ravji Halai v Thornton & Turpin. The court found no unreasonable delay, held that substantial loss would be occasioned since eviction would enable a sale rendering the appeal nugatory, and balanced the parties' interests on security. The court granted the stay, conditioned on the appellant depositing Kshs. 400,000 in court as security within 45 days, failing which the stay would lapse; costs were reserved to the appeal.

Key legal issues

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01

Whether the application was brought without unreasonable delay

Holding

The court found no delay: judgment was delivered on 22 September 2021 and the application and memorandum of appeal were filed on 29 September 2021.

Reasoning

Order 42 Rule 6(2) requires that the application be made without unreasonable delay. The court compared the date of delivery of judgment with the date of filing and found a gap of only a week, satisfying the first condition for the grant of a stay of execution pending appeal.

p. 4
02

Whether the appellant demonstrated substantial loss

Holding

Substantial loss was demonstrated because refusal of stay would expose the appellant to eviction and a potential sale of the suit property, rendering the appeal nugatory.

Reasoning

Although the decree included a money component, which under Shell Ltd v Kibiru would ordinarily not justify a stay, the decree here was also for eviction. The appellant's occupation was the only impediment to the respondent disposing of the property, and a sale pending appeal would occasion substantial loss that could not be undone.

p. 4
03

Whether the appellant should furnish security

Holding

Security was imposed: Kshs. 400,000 to be deposited in court within 45 days, failing which the stay would stand vacated.

Reasoning

The court adopted the principle that security must protect the decree holder without disadvantaging the applicant, taking forms least disadvantageous to the party giving it. The amount adopted was the respondent's own proposal of Kshs. 400,000, balancing both parties' competing interests.

p. 6

Legal principles established

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  • When a decree is for payment of money, refusal to stay execution would not render the appeal nugatory because the money can be repaid.
  • Substantial loss may be shown where a sale of the suit property would ensue upon eviction, rendering the appeal nugatory.

Court orders

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  1. 1.Stay of execution of the judgment and order made in Naivasha Magistrates Court Case No. 82 of 2018 on 22nd September 2021 pending the hearing and determination of the Applicant's Appeal.
  2. 2.The Appellant shall furnish security of Kshs. 400,000 for performance of the decree, deposited in court within 45 days.
  3. 3.In the event of failure to comply with the security order, the stay shall stand vacated.
  4. 4.Costs of the Application shall be in the Appeal.

Authorities

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Legislation

  • Constitution of Kenya 2010Article 40(1)
  • Constitution of Kenya 2010Article 159(2)(d)
  • Limitation of Actions ActSections 4(4) and 7
  • Civil Procedure ActSection 65
  • Civil Procedure ActSections 1A, 1B and 27
  • Civil Procedure RulesOrder 22 Rule 18(2)
  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (13)

  • Victory Construction Vs BM (a minor suing through next friend one PMM)
    [2019] eKLR
  • Vishram Ravji Halai Vs Thornton & Turpin
    Civil Application No. 15 of 1990 [1990] KLR 365
  • Butt Vs Rent Restriction Tribunal
    [1979]
  • Silverstein Vs Chesoni
    (2002) 1 KLR 867
  • Shell Ltd Vs Kibiru & Another
    [1986] KLR 410
  • Nduhiu Gitahi and Another Vs Anna Wambui Warugongo
    [1988] 2 KAR 621
  • Rosengrens Vs Safe Deposit Centers Limited
    [1984] 3 ALLER 198
  • Absalom Dova Vs Tarbo Transporters
    [2013] eKLR
  • Mwaura Karuga t/a Limit Enterprises Vs Kenya Bus Services Ltd & 4 Others
    [2015] eKLR
  • Gianfranco Manenthi & another Vs Africa Merchant Assurance Company Ltd
    [2019] eKLR
  • RWW Vs EKW
    [2019] eKLR
  • Wilson Vs Church (No 2)
    (1879) 12ChD 454
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
On appeal from
Chief Magistrate's Court, Naivasha
Naivasha CMCC No. 82 of 2018
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A and 1B of the Civil Procedure Act

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, "Samuel Njoroge Kiarie v George Irungu Muya [2021] KEELC 255 (KLR)", Case Analysis (2021). Not stated on the face of the ruling (arising from Naivasha Chief Magistrate's Court Case No. 82 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/255/eng@2021-12-14

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