Samuel Njoroge Kiarie v George Irungu Muya [2021] KEELC 255 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the application was brought without unreasonable delay
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.
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.
Whether the appellant demonstrated substantial loss
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.
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.
Whether the appellant should furnish security
Security was imposed: Kshs. 400,000 to be deposited in court within 45 days, failing which the stay would stand vacated.
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.
Legal principles established
#- 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
#- 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.The Appellant shall furnish security of Kshs. 400,000 for performance of the decree, deposited in court within 45 days.
- 3.In the event of failure to comply with the security order, the stay shall stand vacated.
- 4.Costs of the Application shall be in the Appeal.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.