Njiru Micheni Nthiga v Governor, Tharaka Nithi County Government & 5 others [2021] KEELC 441 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicants would suffer substantial loss if stay is not granted
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
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.
Whether the applicants were required to provide security for due performance of the decree
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
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.
The legal framework governing stay of execution pending appeal
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
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.
Legal principles established
#- 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
#- 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.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.