Martha Wangui Thurura & another v Henry Gitahi Thurura & 3 others [2021] KEELC 284 (KLR)
The bottom line
#The Environment and Land Court in Busia paused execution of an eviction judgment until the appeal is heard, provided the applicant deposits Kshs.404,725 as security within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant would suffer substantial loss if stay is not granted
The applicant satisfied the court that it would suffer substantial loss if evicted, as eviction would result in loss of business and property; the respondents made no averments on their means to compensate
The applicant pleaded that the plaintiffs might sell or transfer the suit property to third parties or beneficiaries of the deceased's estate, and had invested money in developing a petrol station. Relying on National Industrial Credit Bank Ltd v Aquinas Francis Wasike, once the applicant expressed reasonable fear that the respondents could not compensate, the evidential burden shifted to the respondents, who made no averments as to their means to compensate should the appeal succeed.
Whether the application was made without unreasonable delay
There was no unreasonable delay; judgment was delivered on 18th March 2021, the application was filed on 7th May 2021, with the Notice of Appeal and Record of Appeal filed earlier
The court compared the dates: judgment delivered 18th March 2021, Notice of Appeal filed 1st April 2021, Record of Appeal filed 23rd April 2021, and the application filed 7th May 2021. On these facts the court found no unreasonable delay in bringing the application for stay pending appeal.
Whether security for the due performance of the decree should be ordered
Stay was granted on condition that the applicant deposits the taxed costs of Kshs.404,725/= in a joint interest-earning account within 30 days
The applicant had not expressed willingness to offer security. The respondents proposed a deposit of Kshs.1,344,000/= for loss of rental income and attached a certificate of taxed costs of Kshs.404,725/=. Though the respondents had not demonstrated inability of the applicant to compensate the taxed costs, the court, balancing the parties' interests, ordered deposit of the whole of the taxed costs as security.
Legal principles established
#- The conditions for stay of execution pending appeal are: substantial loss, application made without unreasonable delay, and security as the court orders
- Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden shifts to the respondent to show what resources he has
- It is the duty of the court, as far as possible, to balance the interests of the parties when considering conditions for stay
Court orders
#- 1.An order of stay of execution granted pending hearing and determination of the appeal before the Court of Appeal
- 2.The applicant to, within 30 days from the date of the ruling, deposit security in the sum of Kshs.404,725/= in a joint interest earning account in the names of advocates for the plaintiff and the 2nd Defendant/Applicant in a banking institution with repute
- 3.In the event of failure to comply with the deposit condition, the stay of execution orders to lapse and the respondents to be at liberty to execute for the taxed costs
- 4.These orders to apply mutatis mutandis to Busia ELC 119 of 2015 which is between the same parties
- 5.Costs to be in the intended appeal
- Jurisdiction invoked
- Article 159 of the Constitution; Sections 3 and 13(7)(a) of the Environment and Land Court Act, 2011; Order 42 Rule 6(1) and (4) and Order 51 Rule 1 of the Civil Procedure Rules; Rules 1, 20, 21 and 22 of the Practice Directions on Proceedings in the Environment and Land Courts
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martha Wangui Thurura & another v Henry Gitahi Thurura & 3 others [2021] KEELC 284 (KLR)", Case Analysis (2021). Busia ELC 119 of 2015 (orders apply mutatis mutandis; application in the suit between the same parties). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/284/eng@2021-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.