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ELCPartially AllowedNot stated in the judgment ( Appeal from Chief Magistrate's Court at Kisii; Notice of Motion dated 17th August 2021)· [2021] KEELC 1125 (KLR)

Lucas Sasati Nyareru v Osinyo Mochumbe Meroka & another [2021] KEELC 1125 (KLR)

Environment and Land Court
3 November 2021
JOJ. M. Onyango
2,061 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court granted a property owner a stay of execution on appeal, but only on conditions including a Kshs. 75,000 security deposit.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisii (J.M Onyango, J) determined the Appellant's Notice of Motion dated 17th August 2021 seeking a stay of execution of the Chief Magistrate's Court ruling of 28th July 2021, pending appeal. The lower court had allowed the Respondent's interlocutory application in part, ordering a forensic test on a deceased signatory's signatures, an injunction restraining the Appellant from interfering with L.R No Kisii Municipality/Block 1/788 (including barring access), and leave to further amend the plaint. The Appellant, claiming to be the registered proprietor in occupation since 2000 with rented-out structures, argued the orders dispossessed him at an interlocutory stage and would render his appeal nugatory. The 1st Respondent challenged the Appellant's title as fraudulent, alleged non-disclosure of material facts, and noted the absence of a alleged purchaser from the suit. Applying Order 42 Rule 6 of the Civil Procedure Rules and the principles in Migotio Plantations Limited v Paul Wanyama Wafula and Butt v Rent Restriction Tribunal, the court held that substantial loss was demonstrated since barring the Appellant from the property would cause the structures to go to waste; there was no inordinate delay; and the security condition was not limited to monetary decrees. The court allowed the application but on terms: a conditional stay restraining the Appellant from selling, alienating, transferring, charging or erecting new structures on the property, security for costs of Kshs. 75,000 within 30 days failing which the stay lapses, and costs of the application borne by the Applicant. The court expressly left the validity of the competing titles for determination at full hearing.

Key legal issues

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01

Substantial loss

Holding

The Applicant demonstrated substantial loss because the order barring him from accessing the suit property would prevent him maintaining and renting out structures on it

Reasoning

Both parties hold title documents to the suit property and the Applicant is in occupation, having rented out structures to tenants. Being barred from access would prevent maintenance of the structures and collection of rent, and the property would go to waste. This constitutes substantial loss sufficient to justify a stay pending appeal.

p. 3
02

Unreasonable delay

Holding

The application was filed without inordinate delay

Reasoning

The impugned ruling was delivered on 28th July 2021 and the application for stay was filed on 18th August 2021, a gap the court found not to constitute inordinate delay.

p. 3
03

Security for costs

Holding

The Applicant must furnish security; the condition is not confined to monetary decrees

Reasoning

Although counsel argued the security condition applies only to monetary decrees, the court held Order 42 Rule 6 contains no such limitation and required security of Kshs. 75,000 within 30 days, failing which the stay lapses.

p. 3

Legal principles established

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  • The conditions for stay of execution pending appeal are substantial loss, application without unreasonable delay, and furnishing of security, under Order 42 Rule 6 of the Civil Procedure Rules
  • Security for costs under Order 42 Rule 6 is not limited to monetary decrees
  • The validity of competing titles cannot be determined at an interlocutory stage on affidavits

Court orders

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  1. 1.A stay of execution of the ruling delivered on 28.7.2021 is granted on condition that the Applicant does not sell, alienate, transfer or charge or erect new structures on L.R No Kisii Municipality/Block 1/788 pending the hearing and determination of the appeal
  2. 2.The Applicant shall furnish security for costs in the sum of Kshs. 75,000 within 30 days failing which the orders of stay shall automatically lapse
  3. 3.The costs of the application shall be borne by the Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure ActNot specified (referred to generally)

Cases cited (2)

  • Migotio Plantations Limited v Paul Wanyama Wafula
    [2015] eKLR
  • Butt v Rent Restriction Tribunal
    [1962] KLR 417
On appeal from
Chief Magistrate's Court at Kisii
Not stated
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (appellate jurisdiction over the lower court's ruling)

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, "Lucas Sasati Nyareru v Osinyo Mochumbe Meroka & another [2021] KEELC 1125 (KLR)", Case Analysis (2021). Not stated in the judgment ( Appeal from Chief Magistrate's Court at Kisii; Notice of Motion dated 17th August 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1125/eng@2021-11-03

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