Zacharia Kiburi M’Tharanju v Jacob M’Manyara [2021] KEELC 1192 (KLR)
The bottom line
#The Environment and Land Court in Meru dismissed a stay application because the appellant filed it late, proved no substantial loss, offered no security, and lacked leave to appeal.
What this practically means
#Executive summary
#Key legal issues
#Conditions for stay of execution pending appeal
Applicant failed to meet all three conditions: substantial loss, absence of delay and offer of security
The court found the application was brought late so as to deny the respondent the fruits of his judgment, that no leave to appeal from the Order 45 review ruling had been sought or obtained, and that no security was offered as a mark of good faith. The respondent had been in occupation of part of the suit land since 2002, negating imminent danger of execution.
Appealability of review orders without leave
The appeal, arising from an Order 45 ruling, required leave under Section 75 of the Civil Procedure Act, which was never sought or obtained
The court perused the lower court file and found no indication that the appellant sought and obtained leave to appeal to the Environment and Land Court, undermining the competence of the appeal and the stay application founded upon it.
Security for due performance of the decree
No offer to furnish security was made, which is fatal to a stay application
A successful party is entitled to enjoy the fruits of his judgment and an applicant for stay must show willingness to assure due performance of the decree eventually either way the appeal goes, as a mark of good faith; none was forthcoming here.
Legal principles established
#- An applicant for stay of execution must satisfy three conditions: substantive loss, no unreasonable delay, and an offer of security for due performance of the decree
- An order made under Order 45 of the Civil Procedure Rules is appealable only with leave of the court making it under Section 75 of the Civil Procedure Act
- A party seeking stay must demonstrate substantial loss with adequate and proper evidence, not merely assert it
Court orders
#- 1.The application dated 28.3.2021 is dismissed with costs
- On appeal from
- Principal Magistrate's Court, Tigania
- Tigania P.M. E&L 53 of 2017
- Jurisdiction invoked
- Section 75 of the Civil Procedure Act (appeal from Order 45 review order lies only with leave)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zacharia Kiburi M’Tharanju v Jacob M’Manyara [2021] KEELC 1192 (KLR)", Case Analysis (2021). Tigania PM E&L 53 of 2017 (Appeal lodged 24.3.2021); Notice of Motion dated 28.2.2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1192/eng@2021-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.