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ELCDismissedNot stated in the judgment· [2021] KEELC 1555 (KLR)

Gateru Njoroge v Bishop Stephen M Kanyia (suing as a trustee and on behalf of the Redeemed Gospel Church) [2021] KEELC 1555 (KLR)

High Court of Kenya (Appellate side, hearing appeal from subordinate court)
15 October 2021
OAO. A. Angote
1,708 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's High Court refused to pause a church property judgment because the applicant could not show real loss if the winning church kept using the land.

What this practically means

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Executive summary

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The Appellant, who had been the Defendant in Kangundo SPMCC No. 204 of 2018, moved the High Court by Notice of Motion dated 26th February, 2021 seeking a stay of execution of the judgment and decree delivered on 17th November, 2020 pending his intended appeal. He deponed that after the Respondent extracted the decree, an eviction notice was issued and that unless stay was granted he would be evicted from the suit property, Kikambuani/Kanzalu/1000, rendering the appeal nugatory. The Respondent, Trustee of the Redeemed Gospel Church, opposed the application, contending that the Church bought the suit property in 2004, that the Appellant was merely a pastor admitted in 2008 who was defrocked in 2017, and that he then unilaterally renamed the church as Jesus Celebration Center (JCC) and converted its property. The trial court had entered judgment for the Respondent, ordering eviction and release of funds held in Equity Bank. The trial court had earlier dismissed the Appellant's own stay application. Applying Order 42 Rule 6(2) of the Civil Procedure Rules, and relying on Mukuma vs Abuoga, Kenya Shell Limited and its own decision in Andrew Nzeki, the court held that substantial loss is the cornerstone of the jurisdiction to grant stay. The Appellant had not challenged the findings that the Respondent's church purchased the property in 2004 and that he renamed it only after being defrocked. Since the property had always been used by the Respondent's church, the Appellant would suffer no substantial loss if that state of affairs continued. The application was dismissed with costs.

Key legal issues

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01

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

Holding

The Application fails because the Appellant did not substantiate substantial loss; the property has always been used by the Respondent's church, so eviction-pending-appeal causes no cognisable loss.

Reasoning

The court noted that the Appellant never challenged the trial court's findings that the Redeemed Gospel Church purchased the suit property in 2004 and that he changed the church's name to JCC only after being defrocked in 2017. Following its own decision in Andrew Nzeki, the court held that preserving the status quo means leaving the property in the Respondent's use, so no substantial loss arises.

p. 3

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant an order of stay of execution.
  • Where the status quo has always been occupation and use by the decree-holder, the applicant for stay suffers no substantial loss by continued use by the decree-holder.

Court orders

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  1. 1.The Application dated 26th February, 2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 41 Rule 4

Cases cited (3)

  • Mukuma vs Abuoga
    (1988) KLR 645
  • Kenya Shell Limited vs Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) 1 KAR 1018
  • Andrew Nzeki (Being sued as Chairman of All in Christ Church Tala Region & 6 others vs Paul Muema Mwangangi (Suing as Trustee and Chairman on behalf of Gospel Community Church & Ministries
    [2020] eKLR
On appeal from
Principal Magistrate's Court, Kangundo
Kangundo SPMCC No. 204 of 2018
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Gateru Njoroge v Bishop Stephen M Kanyia (suing as a trustee and on behalf of the Redeemed Gospel Church) [2021] KEELC 1555 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1555/eng@2021-10-15

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