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ELCAllowednot stated in the judgment as extracted· [2021] KEELC 441 (KLR)

Njiru Micheni Nthiga v Governor, Tharaka Nithi County Government & 5 others [2021] KEELC 441 (KLR)

Environment and Land Court of Kenya
14 December 2021
3,343 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court paused collection of a Kshs. 25 million judgment against government-linked defendants, ruling they needn't deposit security before appealing.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Chuka (C. K. Yano J) on an application dated 2nd July 2021 by the 1st, 2nd, 4th, 5th and 6th Defendants seeking a stay of execution of the judgment delivered on 15th June 2021, pending their intended appeal to the Court of Appeal. The judgment had awarded the plaintiff Kshs. 25,473,000/- in damages, a permanent injunction against trespass on the suit property, and costs. The applicants argued they were aggrieved, had filed a notice of appeal, and that execution would render the appeal nugatory and cause them substantial loss; they further contended, under Order 42 Rule 8 of the Civil Procedure Rules, that no security was required from government entities. The plaintiff opposed, disputing that Order 42 Rule 8 covered devolved entities or the 6th defendant, a limited liability company, and sought an order that the defendants deposit security equal to the decretal sum. The court restated the settled principles in Butt v Rent Restriction Tribunal and Order 42 Rule 6: the applicant must show substantial loss, absence of undue delay, and security. Finding that execution would complicate any refund of a decretal sum exceeding Kshs. 25 million, and that the respondent's prejudice was compensable by costs, the court held the balance tilted in favour of the applicants. On security, finding no denial that the 1st, 2nd, 4th and 5th defendants were government entities or officers, the court allowed the stay unconditionally under Order 42 Rule 8. The application was allowed with no order as to costs.

Key legal issues

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01

Whether the applicants would suffer substantial loss if stay is not granted

Holding

The court found the applicants would suffer substantial loss, as execution would complicate any refund of the decretal sum of over Kshs. 25 million should the appeal succeed

Reasoning

Relying on Century Oil Trading Company Ltd v Kenya Shell Ltd, the court considered the financial position of the parties and the probability of refund. Leaving the respondent to execute would force the applicants, if successful on appeal, to commence fresh refund processes for a sum exceeding Kshs. 25 million. The respondent's prejudice was compensable by costs and interest, so the balance tilted in favour of the applicants.

p. 4
02

Whether the applicants were required to provide security for due performance of the decree

Holding

No security was required because the 1st, 2nd, 4th and 5th Defendants are government entities/officers protected by Order 42 Rule 8 of the Civil Procedure Rules

Reasoning

The plaintiff disputed that Order 42 Rule 8 applied, arguing it referred only to the national government and not devolved entities, and that the 6th defendant is a limited liability company. The court nonetheless found no denial that the 1st, 2nd, 4th and 5th defendants are government entities/officers, and exercised its discretion to allow the stay unconditionally based on that provision.

p. 5
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The legal framework governing stay of execution pending appeal

Holding

Stay is governed by Order 42 Rule 6 of the Civil Procedure Rules, and the applicant must show substantial loss, absence of undue delay, and readiness to give security

Reasoning

The court restated the settled principles from Butt v Rent Restriction Tribunal: the power is discretionary and must be exercised so as not to render an appeal nugatory. Under Order 42 Rule 6(2), the applicant must demonstrate substantial loss, that the application was made without undue delay, and that security for due performance of the decree has been or will be given.

p. 4

Legal principles established

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  • Where the applicants are government entities or officers, Order 42 Rule 8 of the Civil Procedure Rules exempts them from giving security for stay
  • Stay of execution pending appeal is a discretionary power exercised by balancing the applicant's right of appeal against the decree holder's right to enjoy the fruits of the judgment

Court orders

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  1. 1.A stay of execution of the judgment delivered on 15th June 2021 pending the lodging, hearing and determination of the 1st, 2nd, 4th, 5th and 6th Defendants' intended appeal to the Court of Appeal, granted unconditionally
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 48
  • Civil Procedure Rules, 2010Order 40 Rule 10
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 42 Rule 7
  • Civil Procedure Rules, 2010Order 42 Rule 8
  • Civil Procedure Actoverriding principle (2009 amendments)
  • Appellate Jurisdiction Actoverriding principle (2009 amendments)
  • Companies Actnull

Cases cited (11)

  • Madhupaper International Ltd –v- Kerr
    [1985] KLR 840
  • Emma Muthoni Wambaa and Another -v- Joseph Kibaara Kariuki
    Mombasa High Court Civil Suit No. 274 of 2009
  • Technology Today & 2 Others –v- Adrian Noel Carvalho & 5 Others
    Nairobi Commercial & Admiralty Division, Civil Suit No. 627 of 2012
  • African Safari Club -v- Safe Rentals Ltd
    Court of Appeal at Nairobi Civil Application No. Nai 53 of 2010
  • Assanand –v- Pettit
    [1989] KLR 242
  • Butt –vs- Rent Restriction Tribunal
    {1982} KLR 417
  • Kenya Shell Limited –vs- Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) KAR 1018
  • Machira T/A Machira & Co Advocates –vs- East African Standard (No.2)
    (2002) eKLR 63
  • Absalom Dora –v- Turbo Transporters
    (2013) (eKLR)
  • Geoffery Muriungi & another v John Rukunga M’imonyo suing as Legal representative of the estate of Kinoti Simon Rukunga (Deceased)
    [2016] eKLR
  • Century Oil Trading Company Limited vs. Kenya Shell Limited
    Nairobi (2008) eKLR
On appeal from
null
null
Jurisdiction invoked
Order 42 Rule 6 and Order 42 Rule 8 of the Civil Procedure Rules, 2010 (discretion to stay execution of a decree pending appeal)

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, "Njiru Micheni Nthiga v Governor, Tharaka Nithi County Government & 5 others [2021] KEELC 441 (KLR)", Case Analysis (2021). not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/441/eng@2021-12-14

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