Melisa Buluma v Jane Adhiambo Tambo [2021] KEELC 2137 (KLR)
The bottom line
#Kenya's High Court halted an eviction pending appeal because demolishing the applicant's flats would cause loss that couldn't be undone if she won.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant would suffer substantial loss if stay is not granted
The court found that the applicant would suffer substantial loss since her flats and perimeter wall would be demolished if eviction proceeded, and the respondent had not rebutted the allegation that she could not restitute the applicant if the appeal succeeded.
The applicant annexed photographs (MM-3) showing occupied flats up to second floor built on the suit land. The respondent did not deny the investments, only arguing they were quantifiable and compensable. The respondent, who testified she was a housewife, gave no rebuttal of the claim she could not restitute the applicant. Execution before the appeal would therefore render the appeal nugatory, and it was just and safe to maintain the status quo.
Whether the application was made without unreasonable delay
The court found no unreasonable delay: judgment was delivered on 4/09/2020 and the application filed on 10/09/2020, with an oral application for stay having been made on the day of judgment.
The six-day interval was explained: an oral application for stay had been made on the day of delivery of judgment, but the judge directed that a formal application be made. The court accepted this explanation and held the application timely.
Whether security for due performance of the decree was required
The issue of security did not arise because the decree was non-monetary.
Relying on Anthony Warui Wanjiru v David Niyibizi and Sarah N. Sakwa v Elizabeth Wamwanyi, the court held that where the decree is non-monetary, no financial obligations are involved on either side and the condition of security does not arise. The applicant had also expressed willingness to abide by the Court's conditions.
Whether absence of an attached copy of the decree or judgment was fatal
The omission was not fatal since the judgment and decree were on the court record.
The respondent objected that the applicant had not attached a copy of the decree or judgment sought to be stayed. The court noted the typed judgment was available on the record and the decree, issued on 16th September 2020 (after the application was filed), was also on the record, so the omission was not fatal.
Legal principles established
#- The conditions for grant of stay pending appeal are substantial loss, application made without unreasonable delay, and security for due performance of the decree as ordered by the court.
- Where the decree sought to be appealed against is a non-monetary decree, the condition of security for due performance does not arise.
- Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
Court orders
#- 1.Stay of execution of the judgment delivered on 4th September 2020 and the consequent decree pending the hearing and determination of the appeal
- 2.Costs of the application to abide the outcome of the appeal
- Jurisdiction invoked
- Order 42 Rule 6 and Order 5 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act Cap 21 Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Melisa Buluma v Jane Adhiambo Tambo [2021] KEELC 2137 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 10th September 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2137/eng@2021-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.