Charles Gathee Muhoro & another v Wanjiku Ndwaru & another [2021] KEELC 1424 (KLR)
The bottom line
#A Nairobi court stopped the eviction of property owners pending their appeal, but only on condition they deposit Kshs. 500,000 as security within 90 days.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The applicants established substantial loss since execution would result in their eviction from, and cancellation of title to, the suit property.
The lower court declared the 1st respondent the lawful owner and ordered the applicants to vacate and hand over possession. Unless stayed, the applicants faced eviction and the risk of cancellation of their title. The applicants are the registered owners and had developed the property with residential apartments, so the appeal would be rendered nugatory if execution proceeded.
Unreasonable delay
The application was brought without unreasonable delay once the applicants learnt of the judgment.
The applicants learnt of the judgment in February, 2020 when served with the decree and filed the application in March, 2020. The 1st respondent filed no replying affidavit, so the averments that judgment was delivered without notice to the applicants or their advocates were uncontroverted, supporting the claim of no unreasonable delay.
Security for the decree
Security was ordered as a condition of stay - Kshs. 500,000/= to be deposited in an interest-earning joint account within 90 days, failing which the stay lapses automatically.
Order 42 Rule 6(2)(b) requires the applicant to give such security as the court orders for due performance of the decree. The court exercised its discretion to fix an appropriate monetary security, making the stay conditional and protecting the 1st respondent's position pending appeal.
Extension of time to file appeal
A proper basis for extension of time was laid; the delay was explained by lack of notice of the judgment and no prejudice to the 1st respondent was shown.
The 1st respondent filed no replying affidavit, leaving uncontroverted the facts that judgment was to be delivered on notice, was delivered without notice to the applicants' advocates, and came to their attention only in February, 2020, by which time the appeal period had lapsed. Valid reasons for delay were thus given and no prejudice was demonstrated.
Legal principles established
#- An applicant for stay of execution must demonstrate substantial loss, that the application was made without unreasonable delay, and must furnish security as the court orders.
- Substantial loss is the cornerstone of the jurisdiction for granting stay.
- The right of appeal must be protected so that it does not become illusory, and must be weighed against the judgment creditor's right to enjoy the fruits of judgment.
Court orders
#- 1.Stay of execution of the judgment delivered on 9th September, 2019 in Milimani Commercial Court Chief Magistrate's Court Civil Case No. 2323 of 2011 and the subsequent decree, pending the hearing and determination of the intended appeal
- 2.An inhibition inhibiting the registration of any other or further dealings with all that parcel of land known as NAIROBI/BLOCK63/455 pending the hearing and determination of the intended appeal
- 3.The applicants shall deposit in an interest earning bank account in the joint names of the advocates for the applicants and the advocates for the 1st respondent a sum of Kshs. 500,000/= as security within ninety (90) days, in default of which the stay and the inhibition shall lapse automatically without further reference to the court
- 4.Extension of time for filing the appeal up to and including 15th November, 2021
- 5.The appeal shall be filed in a separate file
- 6.Each party shall bear its own costs of the application
- On appeal from
- Milimani Commercial Court Chief Magistrate's Court
- Civil Case No. 2323 of 2011, Wanjiku Ndwaru v Peter Kiboi Githu & 3 others
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution) and the court's power to extend time for filing an appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Gathee Muhoro & another v Wanjiku Ndwaru & another [2021] KEELC 1424 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1424/eng@2021-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.