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ELCDismissedNot stated in judgment· [2021] KEELC 1200 (KLR)

John Nganga Kibe v Rebecca Muthoni Kiama & another [2021] KEELC 1200 (KLR)

Environment and Land Court
2 November 2021
3,434 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff/Applicant moved the court by Notice of Motion dated 24th June 2020 seeking a stay of execution of the ruling delivered by Eboso J on 11th June 2020, pending his intended appeal, together with costs in the cause. The ruling had found that the suit over Title No. Nairobi/Block 126/466 - bought by the Applicant from the 2nd Respondent allegedly under a power of attorney later said to be forged - was compromised under Order 25 Rule 5 of the Civil Procedure Rules following a sale agreement of 15th March 2018 and a consent of 22nd January 2019 that was later withdrawn. The 1st Respondent opposed, arguing there was nothing capable of execution and that the alleged loss was speculative. The court, applying Order 42 Rule 6, found no dispute that the application was filed without undue delay, but held that the Applicant failed to prove substantial loss: any eviction of the Applicant or third-party purchasers would not flow from execution of the 11th June 2020 ruling, which ordered nothing to be done, but from a speculative future suit; the third parties were not parties to the suit. Only the issue of costs remains pending, so a stay would merely convolute the dispute. The application dated 24th June 2020 was dismissed with costs to the respondent.

Key legal issues

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01

Whether the Applicant demonstrated substantial loss under Order 42 Rule 6(2)(a)

Holding

He did not; the alleged eviction would not be in execution of the ruling of 11th June 2020 but predicated on speculation about a future suit

Reasoning

The ruling of 11th June 2020 held the suit compromised under Order 25 Rule 5 and declined the 1st Defendant's motion; it ordered nothing to be done or refrained from. Any eviction of the Applicant or third-party purchasers would arise only from a speculative fresh suit to enforce the consent of 22nd January 2019, and the third parties are not parties to this suit. The evidentiary burden on substantial loss was therefore not discharged.

p. 4
02

Whether there is anything capable of execution in the ruling of 11th June 2020

Holding

No - only the question of costs remains pending, so a stay of execution is not available

Reasoning

The court examined what would be executed under the impugned ruling, applying Western College v Oranga. The suit was held compromised under Order 25 Rule 5 and the 1st Defendant's application was declined; no positive or prohibitive orders were issued. Since only costs remain, a stay of execution would merely convolute the dispute further.

p. 5

Legal principles established

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  • An applicant for stay of execution must satisfy the conditions of substantial loss, absence of undue delay, and provision of security under Order 42 Rule 6; substantial loss must be proved with proper and adequate evidence, not mere assertion

Court orders

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  1. 1.The application dated 24.6.2020 is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 25 Rule 5
  • Civil Procedure Actsections 1A and 1B
  • Civil Procedure RulesOrder XLI rule 4(2)(b) (as cited in Butt v Rent Restriction Tribunal)

Cases cited (23)

  • Margaret Wagithi Njuki v Bernard Waweru Kiburi & 2 others
    [2020] eKLR
  • Consolidated Marine Vs Nampijja & Another
    Civil App.No.93 of 1989 (Nairobi)
  • Antoine Ndiaye vs African Virtual University
    [2015] eKLR
  • Socfinac Company Limited v. Nelphat Kimotho Muturi
    [2013] eKLR
  • Sewankambo Dickson Vs. Ziwa Abby
    HCT-00-CC MA 0178 of 2005
  • James Njoroge Gitau vs Lucy Chepkurui Kimutai
    [2018] eKLR
  • Francis Mburu Kamau vs Methi & Swani Farmers Cooperative Society
    [2020] eKLR
  • Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others
    [2012] eKLR
  • Nathan Chesang Moson & 2 others v Community Uplift Ministries
    (2020) eKLR
  • Matter of Global Tours and Travels Limited
    Nairobi HCCC No 43 of 2002
  • Ezekiel Mule Musembi v H. Young & Company (E.A) Limited
    [2019] eKLR
  • Re Global Tours & Travel Ltd
    HCWC No. 43 of 2000
  • Niazons (Kenya) Ltd. vs. China Road & Bridge Corporation (Kenya) Ltd.
    Nairobi (Milimani) HCCC No. 126 of 1999
  • Henry Sakwa Maloba vs Bonface Papando Tsabuko
    (2020) eKLR
  • Samvir Trustee Limited vs Guardian Bank Limited
    [2007] eKLR
  • Gideon Omare v Machakos University
    [2019] eKLR
  • Kenya Shell Limited vs. Kibiru
    [1986] KLR 410
  • George Obonyo v Marcel Ochieng
    [2021] eKLR
  • Butt vs. Rent Restriction Tribunal
    [1979] eKLR
  • Charles Wahome Gethi vs. Angela Wairimu Gethi
    [2008] eKLR
  • James Wangalwa and another Vs. Agnes Naliaka Cheseto
    [2012] eKLR
  • Focin Motorcycle Co. Limited vs. Ann Wambui Wangui & another
    [2018] eKLR
  • Western College of Arts and Applied Sciences v Oranga & Others
    (1976-80) 1 KLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules 2010

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, "John Nganga Kibe v Rebecca Muthoni Kiama & another [2021] KEELC 1200 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1200/eng@2021-11-02

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