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ELCAllowedEnvironment and Land Court Case No. 213 of 2014· [2021] KEELC 2177 (KLR)

John Mark Wandolo v Paul Ng'ang'a Nage [2021] KEELC 2177 (KLR)

Environment and Land Court
17 August 2021
2,680 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed a landowner to pause execution of a judgment, provided he deposits the land title in court within 14 days.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J.) determined a Notice of Motion dated 31st March 2020 by the defendant/applicant seeking stay of execution of the judgment and decree of the court delivered on 12th March 2020, pending the hearing and determination of an intended appeal. The applicant, the registered proprietor of the suit land forming part of his matrimonial home, had filed a Notice of Appeal on 13th March 2020 and argued he had an arguable appeal that would be rendered nugatory if execution proceeded. Both parties canvassed the application by written submissions. The applicant relied on the settled conditions under Order 42 Rule 6(2) of the Civil Procedure Rules: substantial loss, absence of unreasonable delay, and furnishing of security. The respondent opposed, contending the application was filed 18-19 days after judgment (inordinate delay), that no substantial loss had been established, and that no security had been offered. The court applied Order 42 Rule 6(2) and the overriding objective in sections 1A and 1B of the Civil Procedure Act. It found that transfer of the suit land would interfere with the substratum of the case, constituting substantial loss. It held that the 18-day delay was not unreasonable given the onset of Covid-19 and the court's teething problems with digital platforms. Although the applicant made no offer of security, the court exercised its discretion to order suitable security: deposit of the title deed to the suit land in court within 14 days and retention of possession, failing which the stay lapses. The application accordingly succeeded.

Key legal issues

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01

Conditions for stay of execution under Order 42 Rule 6(2)

Holding

The applicant must show substantial loss, that the application was made without unreasonable delay, and must offer security for due performance of the decree; only then can the court exercise its discretion.

Reasoning

The court framed the analysis around Order 42 Rule 6(2) of the Civil Procedure Rules, citing authority that the three conditions — substantial loss, absence of unreasonable delay, and furnishing of security — are cumulative. Where an applicant meets the threshold, the court may exercise its discretion in the applicant's favour, guided by the overriding objective of just and proportionate disposal.

p. 3
02

Whether 18 days' delay in filing the application was unreasonable

Holding

The delay of 18 days between judgment (12th March 2020) and the application (31st March 2020) did not amount to unreasonable delay given the circumstances, including the onset of Covid-19 and the court's teething problems with digital platforms.

Reasoning

The court noted that the application was filed 18 days after delivery of judgment, coinciding with the Covid-19 pandemic and the courts' difficulties in transitioning to digital platforms. Relying on the Utalii Transport case, it held that what amounts to inordinate delay differs from case to case, and each case must be assessed on its own circumstances rather than a blanket blame of Covid-19.

p. 4
03

Security for due performance of the decree

Holding

The applicant offered no security; the court exercised its own discretion, ordering deposit of the title deed to the suit land in court within 14 days, failing which the stay lapses.

Reasoning

Although the applicant had made no offer of security, the court held it had discretion to order suitable security itself in order to preserve the suit land. It required the applicant to deposit the title to the suit land in court within 14 days and not to part with possession pending determination of the suit, with non-compliance causing the stay to lapse.

p. 4

Legal principles established

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  • The purpose of a stay of execution pending appeal is to preserve the subject matter in dispute so that a successful appeal is not rendered nugatory, while balancing the successful litigant's right to the fruits of judgment.

Court orders

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  1. 1.Stay of execution of the judgment and decree delivered on 12th March 2020 pending the hearing and determination of the intended appeal
  2. 2.The applicant to deposit the title to the suit land in court within 14 days and not to part with possession of the suit land pending the hearing and determination of the suit
  3. 3.If the order for deposit of the title is not complied with, the stay order lapses

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure ActSections 1A and 1B
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159(2)(b)

Cases cited (16)

  • Canvas Manufacturers Ltd Vs Stephen Reuben Karunditu
    Civil Application No.158 of 1994, (1994) LLR 4853
  • Carter & Sons Ltd -Vs- Deposit Protection Fund Board & 2 Others
    Civil Appeal No. 291 of 1997
  • Hassan Guyo Wakalo —Vs- Straman E.A Ltd
    (2013) eKLR
  • Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others
    [2012] eKLR
  • Ndumia Gitahi and Another vs Anna Wambui Warugongo
    (1988) 2 KAR
  • Rosengrens vs Safe Deposit Centres Limited
    [1984) 3 ALLER 198
  • Mohamed Salim T/A Choice Butcher Nasserpuria Memon Jamal
    2013 eKLR
  • James Wangalwa & Another versus Agnes Naliaka Cheseto
    [2012] eKLR
  • Jason Ngumba Kagu 2 others versus Intra Africa Assurance Co. Limited
    [2014] eKLR
  • Simba Coach Limited versus Kiriiyu Merchants Auctioneers
    [2019] eKLR
  • Mwaura Karuga t/a Limit Enterprises versus Kenya Bus Services Ltd & 4 Others
    [2015] eKLR
  • Socfinac Company Limited V Nelphat Kimotho Muturi
    [2013] eKLR, H.C at Nairobi (Milimani), 542 of 2012
  • Vishram Ravji Halai vs. Thornton & Turpin
    Civil Application No. Nai. 15 of 1990 [1990] KLR 365
  • Regional Institute of Business Management v Lucas Ondong' Otieno
    [2020] eKLR
  • RWW vs. EKW
    [2019] eKLR
  • Utalii Transport Company Limited & 3 others vs NIC Bank & Another
    (2014) eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "John Mark Wandolo v Paul Ng'ang'a Nage [2021] KEELC 2177 (KLR)", Case Analysis (2021). Environment and Land Court Case No. 213 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2177/eng@2021-08-17

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