Grace Karamana v Fridah Mwari & another [2021] KEELC 1214 (KLR)
The bottom line
#A Kenyan landowner's bid to freeze execution of a judgment failed because she offered no documents proving she would suffer substantial loss.
What this practically means
#Executive summary
#Key legal issues
#Competence of the appeal under Order 9 Rule 9
The appeal and application are competently before the court since an appeal is a new proceeding allowing change of advocates
Relying on Tobias M. Wafubwa v Ben Butali, the court held that after judgment an appeal is a fresh proceeding before a court operating under different rules, so the appellant was entitled to instruct new counsel without the consent required by Order 9 Rule 9. The preliminary objections therefore failed.
Whether stay of execution conditions were met
The appellant failed to demonstrate substantial loss; the application was dismissed with costs
The court set out the three Order 42 Rule 6(1) conditions and found the appellant made only bare assertions of living on the land for decades and of irreparable harm, without documentary proof, and did not show any threatened execution such as notices. The balancing exercise therefore did not favour a stay.
Legal principles established
#- Once judgment is entered, an appeal is not a continuation of the lower court proceedings but a new proceeding in which a party may choose new legal representation, so Order 9 Rule 9 does not bar the appeal
- A stay applicant under Order 42 Rule 6(1) must demonstrate substantial loss, no inordinate delay, and offer security for due performance of the decree
- Substantial loss must be supported by documentary evidence, not mere assertions
Court orders
#- 1.The application for stay of execution is dismissed with costs
- On appeal from
- Githongo Principal Magistrate's Court
- ELC No. 18 of 2018
- Jurisdiction invoked
- Order 42 Rule 6(1) of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Karamana v Fridah Mwari & another [2021] KEELC 1214 (KLR)", Case Analysis (2021). Githongo PMC ELC No. 18 of 2018 (Appeal thereto). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1214/eng@2021-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.