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ELCDismissedNot stated in judgment· [2021] KEELC 1121 (KLR)

David Kimengere Waititu & another v Angela Wairimu Gethi & another [2021] KEELC 1121 (KLR)

Environment and Land Court
4 November 2021
YAY. M. Angima
1,232 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to pause eviction because the applicants waited nearly a year after judgment, proving that delay kills stay applications even when loss is obvious.

What this practically means

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Executive summary

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The Plaintiffs moved the court by notice of motion dated 31st August, 2020 seeking a stay of execution of a decree dated 12th November, 2019 and amended on 5th May, 2020, pending an intended appeal. They argued that they resided on and depended on the suit property, had undertaken massive developments there, and that eviction would occasion them substantial loss. They explained the delay in moving the court by blaming former advocates who closed their offices and became unreachable. The Defendants opposed, asserting their right to the fruits of their judgment, pointing out that no appeal was actually pending, that no notice or record of appeal had been filed, and that any extension application before the Court of Appeal remained undetermined. The court framed the sole issue as whether the Plaintiffs had satisfied the requirements for stay under Order 42 Rule 6(2). It accepted that substantial loss was demonstrated, since the Plaintiffs' long occupation and developments were undisputed. However, it found the application was filed after an unexplained delay of nearly one year and rejected the explanation regarding the former advocates, holding that a diligent litigant should have obtained alternative representation or traced the former advocates through the Law Society of Kenya. Having failed one mandatory requirement, the Plaintiffs' application was dismissed with costs.

Key legal issues

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01

Substantial loss

Holding

The Plaintiffs demonstrated substantial loss as they had resided on and developed the suit property for many years and faced removal

Reasoning

The court noted the Plaintiffs' long occupation and developments on the suit property, which the Defendants did not dispute, and accepted that eviction would occasion substantial loss.

p. 2
02

Unreasonable delay

Holding

The application filed nearly a year after judgment was not made without unreasonable delay, a mandatory requirement under Order 42 Rule 6(2)

Reasoning

Judgment was delivered on 12th November 2019 and the motion was filed on 31st August 2020 with no adequate explanation. The court rejected the excuse that former advocates had closed their offices, holding that a diligent litigant should have instructed new advocates or traced the former ones through the Law Society of Kenya.

p. 2

Legal principles established

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  • A diligent litigant facing execution should take alternative legal representation rather than await a former advocate who has closed office, and unexplained delay of nearly a year disentitles an applicant to stay under Order 42 Rule 6(2)

Court orders

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  1. 1.The Plaintiffs' notice of motion dated 31st August, 2020 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 42 Rule 6(2), Order 51 Rule 1
  • Constitution of Kenya, 2010Article 159

Cases cited (8)

  • Chris Munga N. Bichage v Richard Nyagaka Tongi & 2 Others
    [2013] eKLR
  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR
  • Britam General Insurance Company Kenya v Abigail Khasoa Simiyu
    [2020] eKLR
  • Charles Kariuki Njuri v Francis Kimaru (suing as the administrator of the estate of Rwara Kimaru alias Benson Rwara Kimaru (deceased)
    [2020] eKLR
  • Patrick Njuguna Kariuki v Delmonte Kenya Limited
    [2020] eKLR
  • Joackim Ngugi Kiarie v G Z. Ulyate & 6 Others
    [2014] eKLR
  • Samuir Trustee Limited v Guardian Bank Ltd
    [2007] eKLR
  • Mwaura Karuga t/a Limit Enterprises v Kenya Bus Service Ltd & 4 others
    [2015] eKLR
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act (Cap. 21), Order 42 Rule 6(2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010, Article 159 of the Constitution

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, "David Kimengere Waititu & another v Angela Wairimu Gethi & another [2021] KEELC 1121 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1121/eng@2021-11-04

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