Khairrunissa Hussein Haji Ladha & another v Suleiman Abdulrehman & 4 others [2021] KEELC 871 (KLR)
The bottom line
#The Mombasa Environment and Land Court dismissed the Defendants' bid to pause execution of a judgment, ruling they proved no evidence of loss and offered no real security.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
Not established - the Applicants merely asserted that cancellation of their title would cause substantial loss without evidence
The court held that it is insufficient to simply state that cancellation of a title amounts to substantial loss; the kind of loss and how it would be experienced must be demonstrated. It relied on Samvir Trustee Ltd v Guardian Bank Ltd for the requirement of empirical or documentary evidence. The Respondents' counter that registration was reversible weighed against the Applicants.
Security for the due performance of the decree
Not furnished - the assurance not to evict the Respondents was not tangible security
Although the court itself orders the security under Order 42 Rule 6(2), the Applicants' mere statement that they would not evict the Respondents from their residence was held to be an intangible security proposition and showed lack of good faith. This failure weighed against granting the stay.
Undue delay
The application was brought without undue delay, filed 6th July 2021 within the 30-day stay earlier granted
The court found the application timely, having been filed on 6th July 2021 within the 30 days' stay of execution granted on 3rd June 2021. This was the only condition the Applicants satisfied, but it was insufficient on its own to secure a stay.
Legal principles established
#- For a stay of execution pending appeal, the applicant must show sufficient cause, substantial loss, no unreasonable delay and furnish security; substantial loss must be supported by empirical or documentary evidence, not mere assertions
- A successful party is ordinarily entitled to the fruits of his judgment when a stay application is considered
Court orders
#- 1.The notice of motion application dated 5th July 2021 by the 1st, 2nd, 3rd, 4th and 5th Defendants/Applicants is bereft of any merit and the same is and hereby dismissed
- 2.The Land Registrar, Mombasa to register an inhibition onto all that property known as Land Reference Numbers Plot No. Mombasa/Block XXII/155 by invoking Section 68 (1) and (2) of the Land Registration Act No. 3 of 2012 and Rule 79 of the Land Registration (General) Regulations, 2017 within the next 30 days from the date of this ruling at the costs of the Defendants/Applicants
- 3.The costs of the application to be borne by the 1st, 2nd, 3rd, 4th and 5th Defendants/Applicants
- Jurisdiction invoked
- Order 42 Rule 6(1), (2) and (6) and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwaluma v Kiwoi (Sued in her Own Capacity and in her Capacity as Personal Representative and Administrator of the Estate of Hannington Kiwoi)[2023] KEELC 20628 (KLR)5 Oct 2023
- Leonard N. Shimaka t/a Marende Necheza & Company Advocates v Registered Trustees of Mudzini Kwetu Center Trust[2023] KEELC 20201 (KLR)25 Sept 2023
Cite this brief
#Cite this brief
Caselaw, "Khairrunissa Hussein Haji Ladha & another v Suleiman Abdulrehman & 4 others [2021] KEELC 871 (KLR)", Case Analysis (2021). Notice of Motion dated 5th July 2021 (ELC suit re Plot No. MSA/BLOCK/XII/155). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/871/eng@2021-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.