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ELCPartially AllowedAppeal from Kilifi CMCC No. 57 of 2019 (case number of the appeal not stated in the judgment)· [2021] KEELC 520 (KLR)

Shadrack Omondi Okumu & another v Housing Finance Company of Kenya Limited & 2 others [2021] KEELC 520 (KLR)

High Court of Kenya
25 November 2021
2,277 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court paused an eviction after a mortgage auction, but only because the homeowners agreed to deposit Kshs 150,000 as security while they appeal.

What this practically means

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Executive summary

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This is a ruling of the High Court at Malindi (M.A. Odeny, J) delivered on 25th November 2021 on an application dated 17th May 2021 by the appellants seeking a stay of execution of the ruling, order and decree issued on 9th December 2020 by Hon. Kituku SPM in Kilifi CMCC No. 57 of 2019 pending the hearing and determination of their appeal. The lower court had allowed the 2nd and 3rd respondents' application for a mandatory injunction, which would result in the applicants yielding vacant possession of the suit property, Plot L.R. No. 5408/III/MN (C.R. 49951), Mtwapa, allegedly their matrimonial home. The 1st respondent charged the property to secure a mortgage facility of Kshs 5,236,000, defaulted, and exercised its statutory power of sale; the 2nd and 3rd respondents bought the property at a public auction on 6th February 2019. An earlier injunction application in the lower court and a first appeal (dismissed by R. Nyakundi, J on 11th October 2019 in Malindi HCCC Appeal No. 30 of 2019) had already failed. Applying Order 42 rule 6(2) of the Civil Procedure Rules, the court found the applicants established substantial loss and filed the application timeously despite a false start, and granted a conditional stay: the applicants, in possession, to deposit Kshs 150,000/- into a joint interest-earning account of counsel within 30 days failing which the order lapses; the applicants restrained from interfering with the character of the suit land; the record of appeal to be filed within 30 days; and costs to abide the outcome of the appeal. The court declined to be swayed by the matrimonial home argument since the applicant knew the consequences of mortgage default.

Key legal issues

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01

Whether the applicants established substantial loss justifying stay of execution

Holding

The applicants met the threshold for stay, establishing substantial loss if the mandatory injunction decree yielding vacant possession were executed

Reasoning

The lower court's ruling granted a mandatory injunction resulting in vacant possession of the suit property, the applicants' home. Execution would evict them and render the appeal nugatory. The court found the threshold satisfied and, to preserve the substratum of the suit land, granted a conditional stay with a security deposit and restraints on the applicants.

p. 4
02

Whether the application was made without unreasonable delay

Holding

The application was filed timeously despite a false start where the order being impeached was not attached on two occasions

Reasoning

The court noted the application had a false start due to the order not being attached on two occasions, but applying Jaber Mohsen Ali v Priscillah Boit, what constitutes unreasonable delay depends on the circumstances of each case, and here the delay was not unreasonable.

p. 3
03

Whether the applicants should furnish security for the due performance of the decree

Holding

Stay granted conditionally on a deposit of Kshs 150,000/- into a joint interest-earning account within 30 days

Reasoning

To preserve the substratum of the suit land pending appeal, the court required the applicants, who remain in possession, to deposit security into a joint interest-earning account of counsel, failing which the stay lapses. The applicants were also restrained from altering the character of the land and required to file the record of appeal within 30 days.

p. 4

Legal principles established

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  • An applicant for stay of execution pending appeal must establish substantial loss, that the application was made without unreasonable delay, and furnish such security as the court orders for due performance of the decree
  • The court should balance the rights of the successful litigant against the aggrieved litigant's right of appeal, and preserve the status quo to avoid rendering the appeal nugatory

Court orders

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  1. 1.Stay of execution granted conditional upon the applicants, who are in possession, depositing Kshs 150,000/- into a joint interest-earning account of counsel on record for the applicants and the 2nd and 3rd respondents within 30 days, failing which the order lapses
  2. 2.The applicants are precluded from interfering with the character of the suit land pending the hearing and determination of the intended appeal
  3. 3.Applicants to file the record of appeal within 30 days
  4. 4.Costs to abide by the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(2)
  • Civil Procedure RulesOrder 21 [1]

Cases cited (14)

  • Rhoda Mukoma vs John Abuoga
    [1988] eKLR
  • Butt vs Rent Restriction Tribunal
  • Seaman Building & Civil Engineering Ltd vs Justus Makokha Nasongo
    [2020] eKLR
  • RWW vs EKW
    [2019] eKLR
  • HGE vs SM
    [2020] eKLR
  • Multimedia University & Another vs Professor Gitile N. Naituli
    (2014) eKLR
  • Stanley Kangethe Kinyanjui vs Tony Ketter & Others
    [2103] eKLR (as printed)
  • Equity Bank Ltd vs Taiga Adams Company Ltd
    [2006] eKLR
  • Elena D. Korir vs Kenyatta University
    [2012] eKLR
  • Hassan Guyo Wakalo vs Straman EA Ltd
    (2013) eKLR
  • Hassan Guyo Wakalo vs Straman FA Ltd
    [2013/eKLR (as printed)
  • Ishmael Kagunyi Thande vs Housing Finance Company of Kenya Limited
    Civil Application No. Nai. 157 of 2006 (unreported)
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    [2014] eKLR
  • Siegfried Busch vs MCSK
    [2013] eKLR
On appeal from
Chief Magistrate's Court, Kilifi
Kilifi CMCC No. 57 of 2019
Jurisdiction invoked
Appellate jurisdiction over subordinate court decrees, Order 42 rule 6 of the Civil Procedure Rules

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, "Shadrack Omondi Okumu & another v Housing Finance Company of Kenya Limited & 2 others [2021] KEELC 520 (KLR)", Case Analysis (2021). Appeal from Kilifi CMCC No. 57 of 2019 (case number of the appeal not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/520/eng@2021-11-25

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