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ELCAllowedNot stated in the judgment (application dated 10th September 2020)· [2021] KEELC 2137 (KLR)

Melisa Buluma v Jane Adhiambo Tambo [2021] KEELC 2137 (KLR)

High Court of Kenya
30 July 2021
2,986 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the High Court at Kisumu (Antony Ombwayo, J) delivered on 30th July 2021 on a Notice of Motion dated 10th September 2020 by Jane Adhiambo Tambo, the applicant, seeking stay of execution of a judgment and order delivered by the same court on 4th September 2020 (which allowed an appeal, entered judgment against her and ordered her immediate eviction from land parcel LR No. 16600) pending her intended appeal to the Court of Appeal. The application, brought under Order 42 Rule 6 and Order 5 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, was opposed by Georgine J. Mbaya, the appellant's advocate on record, who argued the application was misconceived, that substantial loss was not demonstrated because the investment on the land was quantifiable, that the decree was absent from the application, and that no security had been furnished. The court framed a single main issue: whether the applicant met the Order 42 Rule 6(2) conditions. It held the absence of an attached decree was not fatal since the judgment and decree were on the court record. On substantial loss, the court found the applicant's occupied flats and perimeter wall would be demolished and the respondent, a housewife, had not rebutted the claim that she could not restitute the applicant if the appeal succeeded. The application, filed six days after judgment with an oral application made on the judgment date, was timely. As the decree was non-monetary, the security condition did not arise. The court allowed the application, granting stay of execution of the judgment of 4th September 2020 and the consequent decree pending the appeal, with costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Whether the applicant would suffer substantial loss if stay is not granted

Holding

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.

Reasoning

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.

p. 4
02

Whether the application was made without unreasonable delay

Holding

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.

Reasoning

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.

p. 4
03

Whether security for due performance of the decree was required

Holding

The issue of security did not arise because the decree was non-monetary.

Reasoning

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.

p. 4
04

Whether absence of an attached copy of the decree or judgment was fatal

Holding

The omission was not fatal since the judgment and decree were on the court record.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 5 Rule 1
  • Civil Procedure ActSection 3A
  • Evidence ActSections 107 and 108

Cases cited (11)

  • Halai and Another v Thorton & T Turpin (1963) Ltd
    [1990] eKLR
  • West Kenya Company Limited v Lurther Angatia
    [2018] eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Samvir Trustee Limited v Guardian Bank Limited
    Nairobi (Milimani) HCC 795 of 1997
  • Mangungu v National Bank of Commerce Ltd
    [2007] 2 EA 285
  • Masisi Mwita v Damaris Wanjiku Njeri
    [2016] eKLR
  • Amal Hauliers Limited v Abdulnasir Abukar Hassan
    [2017] eKLR
  • Anthony Warui Wanjiru v David Niyibizi & another
    Nairobi High Court Civil Appeal No. 748 of 2019; [2020] eKLR
  • Sarah N. Sakwa v Elizabeth Wamwanyi t/a Namukhosi Ltd & another
    [2017] eKLR
  • Praxades Okutoyi v Medical Practitioners and Dentists Board
    (2008) eKLR
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

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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, "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.