Stanley Amwayi Were v Frida Omari Gardison & 3 others [2021] KEELC 649 (KLR)
The bottom line
#The High Court at Kakamega dismissed a request to protect land pending appeal because the applicant waited three months and argued nothing.
What this practically means
#Executive summary
#Key legal issues
#Unreasonable delay in applying for injunction pending appeal
A delay of about three months from the ruling, and two months from filing the appeal, to the date of the application was unreasonable
The ruling appealed from was delivered on 12 January 2021 and the application was filed on 8 April 2021, about three months later. Even measured from the filing of the appeal on 9 February 2021, two months elapsed before the application was lodged under certificate of urgency. The court therefore was not persuaded the application was brought without unreasonable delay, an essential limb of the test.
Substantial loss
The appellant failed to demonstrate substantial loss, particularly as he filed no submissions or arguments in support
Although the appellant deposed that respondents threatened eviction and that the appeal would be rendered nugatory, the 4th respondent denied any threat of alienation. Crucially, after filing the application the appellant advanced no arguments - the respondents filed submissions but the applicant did not. On that state of the record the court found no demonstration of substantial loss.
Legal principles established
#- The test for a temporary injunction pending appeal mirrors that for stay of execution: substantial loss, no unreasonable delay, and security for due performance of the decree
Court orders
#- 1.Notice of Motion dated 7th April 2021 dismissed
- 2.Costs to abide the outcome of the appeal
- On appeal from
- Chief Magistrate's Court at Kakamega
- Kakamega MCELC No. 381 of 2018
- Jurisdiction invoked
- Order 42 rule 6(6) of the Civil Procedure Rules, 2010 (appellate jurisdiction to grant temporary injunction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stanley Amwayi Were v Frida Omari Gardison & 3 others [2021] KEELC 649 (KLR)", Case Analysis (2021). Notice of Motion dated 7th April 2021 (arising from an appeal against Kakamega MCELC No. 381 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/649/eng@2021-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.