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ELCAllowedNot stated in the judgment· [2021] KEELC 1472 (KLR)

Gibson Mwendo Mwangemi v Joyce Kaluki Muinde [2021] KEELC 1472 (KLR)

Environment and Land Court
19 October 2021
3,158 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Mombasa court paused execution of a money judgment, but only after the appellant committed to deposit Kshs. 250,000 as security within 30 days.

What this practically means

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Executive summary

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This was a ruling on the Appellant's Notice of Motion dated 18th August 2021 seeking a temporary stay and a stay of execution pending appeal against a judgment of the subordinate court delivered on 13th July 2021 in favour of the Respondent. The Appellant, who ran a business on the suit premises, apprehended execution following a demand letter of 10th August 2021 demanding Kshs. 619,225.00, combining rent arrears with trial court costs, and argued the appeal would be rendered nugatory. The Respondent opposed, contending the application was a tactic to deny her the fruits of judgment; she highlighted the Appellant's disobedience of an order of 13th June 2018 to deposit rents in court, having deposited only Kshs. 42,000/= against arrears said to exceed Kshs. 500,000/=, and sought the deposit of arrears as security. The court framed two issues: whether the Order 42 rule 6(1) and (6) conditions for stay were met, and costs. Applying the settled criteria — substantial loss, no unreasonable delay, security and sufficient cause — the court found a demand letter evidenced a real threat of execution and substantial loss, found no inordinate delay in filing, and directed security of Kshs. 250,000/= within 30 days in a joint interest-earning advocates' account. The application was allowed; the appeal was to be fixed for pre-trial conference within 45 days; default in compliance would render the application dismissed with costs and execution would issue. Costs of the application were to be in the cause.

Key legal issues

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01

Whether the Appellant satisfied the requirements for grant of stay of execution pending appeal under Order 42 rule 6(1) and (6) of the Civil Procedure Rules

Holding

The court found the Appellant satisfied the requirements: substantial loss was demonstrated by the Respondent's demand letter threatening execution; the application was filed without inordinate delay (judgment 13 July 2021, application filed 19 August 2021); and security was fixed at Kshs. 250,000/= to be deposited within 30 days in a joint interest-earning account. The application was allowed on those terms.

Reasoning

The court applied the established four-fold criteria for stay: substantial loss, no unreasonable delay, security, and sufficiency of cause. It accepted that the demand letter of 10th August 2021 for Kshs. 619,225.00 showed a real threat of execution rendering the appeal nugatory. The court noted the filing timeline demonstrated no delay. Balancing the interests of the successful litigant against the appellant's right of appeal, it conditioned stay on deposit of Kshs. 250,000/= as security within 30 days, failing which the stay lapses and execution issues.

p. 4
02

Whether the court's discretion on stay is fettered strictly by the four traditional conditions

Holding

While the four conditions guide the discretion, the court held they are subject to the overriding objectives in Sections 1, 1A, 3 and 3A of the Civil Procedure Act and Section 3 of the Environment and Land Court Act, requiring just, expeditious and proportionate determination without undue technicalities.

Reasoning

The court acknowledged the well-settled criteria from precedent but noted that the inherent powers of the court under the Oxygen rule and the ELC Act emphasise just, expeditious, proportionate and accessible determination of disputes without undue technicalities. Thus the discretion, though guided by the four principles, must be exercised in light of the overriding objective and with a view to avoiding undesirable or absurd outcomes.

p. 4

Legal principles established

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  • The purpose of an application for stay of execution pending appeal is to preserve the subject matter in dispute so that the appellant's right of appeal is safeguarded and the appeal, if successful, is not rendered nugatory.
  • The court's discretion to grant stay of execution must be exercised judicially and not capriciously, weighing the risk of injustice to both sides.
  • The conditions for granting stay of execution pending appeal are sufficient cause, substantial loss, no unreasonable delay, and furnishing of security.

Court orders

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  1. 1.The Appellant/Applicant to provide security for costs of Kenya Shillings Two Hundred and Fifty Thousand (Kshs. 250,000.00) within 30 days, to be held in an interest-earning joint account by the law firms of Messrs. Mwawasa & Co. Advocates and Messrs. Okanga & Company until the appeal is heard and determined
  2. 2.The notice of motion application dated 18th August 2021 be and is hereby allowed
  3. 3.The appeal to be fixed for pre-trial conference within the next 45 days
  4. 4.Failure to comply with the said orders, the application to be deemed dismissed with costs and execution to issue accordingly
  5. 5.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6(6)
  • Civil Procedure ActSections 1, 1A, 3, 3A
  • Environment and Land Court Act No. 19 of 2012Section 3

Cases cited (7)

  • Victory Construction Versus B.M (Minor suing through next friend one PMM)
    High Court (Machakos) Civil Appeal No. 19 of 2019
  • Consolidated Marine – Versus – Namprijad
    Civil Appeal No. 93 of 1989, Nairobi
  • Masisi Mwita – VS – Damaris Wanjiku Njeri
    Civil Appeal No. 107 of 2015 [2016] eKLR
  • Vishram Rouji Halal – VS – Thornton & Turpin
    Civil Appeal No. 15 of [1990] KLR 365
  • Canvass Manufacturers Ltd – VS – Stephen Reuben Korunditu
    Civil Application No. 158 of 1994 [1994] LLR 4853
  • Stephen Wanjiku – VS – Central Glass Industries Ltd
    Nbi HCC No. 6726 of 1991
  • Hassan Guyo Wakolo – VS – Straman E.A. Ltd
    [2013]
On appeal from
Subordinate Court
Jurisdiction invoked
Order 42 Rules 6(1) and 6(6) of the Civil Procedure Rules; Sections 1, 1A, 3 and 3A of the Civil Procedure Act; Section 3 of the Environment and Land Court Act No. 19 of 2012

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, "Gibson Mwendo Mwangemi v Joyce Kaluki Muinde [2021] KEELC 1472 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1472/eng@2021-10-19

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