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ELCPartially AllowedNot stated in the judgment (Civil Appeal No. 5 of 2020 is the pending appeal referenced)· [2021] KEELC 2348 (KLR)

James Gathitu Mwaura & another v Peter Njoroge Mwangi & another [2021] KEELC 2348 (KLR)

High Court of Kenya (Environment and Land Court seat, Murang'a)
29 July 2021
JKJ G Kemei
1,227 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Following a judgment delivered on 30/1/2020 in which the Plaintiffs failed to prove their case and were condemned to pay costs to the 1st Defendant, the 1st Defendant taxed his bill at Kshs 160,620/- (certificate of taxation dated 23/9/2020) and initiated execution by way of a notice to show cause why the judgment debtors should not be arrested and committed to civil jail. The Plaintiffs, who had filed a notice of appeal to the Court of Appeal, moved the court by notice of motion dated 23/2/2021 seeking stay of execution of the judgment pending Civil Appeal No. 5 of 2020, or in the alternative stay of proceedings. The Respondent opposed, arguing the Applicants never objected to the taxation, showed no substantial loss, and the application was late. Applying Order 42 rule 6(2) of the Civil Procedure Rules, the court found the 13-month delay inordinate and unexplained. Relying on Machira & Co. Advocates v East African Standard, James Wangalwa v Agnes Naliaka Cheseto, and Carter & Sons Ltd v Deposit Protection Fund Board, it held that substantial loss is the key to a stay, that mere commencement of lawful execution is not substantial loss, and that in a money decree the Applicant must show the Respondent cannot refund. The Respondent had averred he runs a modest business capable of repayment. The court allowed the application on conditions: deposit of Kshs 160,620/- in an interest-earning joint account within 15 days, failing which the stay lapses automatically; costs of the application to the Respondent.

Key legal issues

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01

Whether the application was made without unreasonable delay

Holding

The delay of 13 months after judgment was inordinate and unexplained, weighing against the Applicants.

Reasoning

The judgment was delivered on 30/1/2020 and the application filed on 23/2/2021. The court found this 13-month delay inordinate and noted that the Applicants offered no explanation for it, failing the requirement in Order 42 rule 6(2)(a) that the application be made without unreasonable delay.

p. 2
02

Whether substantial loss was demonstrated

Holding

No substantial loss was shown; likelihood of committal to civil jail for taxed costs and the existence of an arguable appeal do not amount to substantial loss.

Reasoning

Relying on Machira and James Wangalwa, the court held that execution is a lawful process and its commencement does not amount to substantial loss. The Applicants' asserted loss (committal to civil jail) and arguability of the appeal fell short; in a money decree the Applicants had to show the Respondent could not refund, which the Respondent rebutted by stating he ran a modest business capable of repayment.

p. 2
03

Whether stay should issue on conditions

Holding

Stay granted conditionally upon deposit of the taxed costs of Kshs 160,620/- within 15 days, failing which the stay lapses automatically.

Reasoning

Balancing the successful party's right to the fruits of judgment against the Applicant's right to appeal, the court crafted a conditional stay ensuring security for the decree in line with Order 42 rule 6(2)(b), with automatic lapse on default and costs of the application to the Respondent.

p. 2

Legal principles established

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  • Substantial loss is the key consideration in an application for stay of execution; the Applicant must demonstrate actual loss, and mere commencement of execution does not suffice.
  • In a money decree, the burden shifts to the Applicant to demonstrate that the Respondent would be unable to refund the monies if the appeal succeeds.
  • In stay applications the court balances the successful party's right to enjoy the fruits of judgment against the Applicant's right to pursue an appeal.

Court orders

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  1. 1.Stay of execution of the judgment dated 30/1/2020 granted on condition that the Applicants deposit Kshs 160,620/- in an interest-earning account in the joint names of the advocates for the parties within 15 days from the date of the ruling, pending the hearing and determination of the appeal
  2. 2.In default of the deposit, the orders of stay shall lapse automatically
  3. 3.Costs of the application awarded to the Respondent
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, "James Gathitu Mwaura & another v Peter Njoroge Mwangi & another [2021] KEELC 2348 (KLR)", Case Analysis (2021). Not stated in the judgment (Civil Appeal No. 5 of 2020 is the pending appeal referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2348/eng@2021-07-29

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