Duncan Githiga Mwangi v Kanu Maendeleo ya Wanawake Muranga Branch & 4 others [2021] KEELC 2707 (KLR)

Judgment was delivered on 28/3/2019 and the application filed on 19/4/2021, over two years later. The Applicants offered no explanation for the delay. As stay of execution is an equitable relief, delay defeats equity, and without a satisfactory reason the court has no basis to exercise its discretion in the Applicant's favour.

In a money decree, substantial loss lies in the Respondent's inability to repay. The legal burden of proving this inability rests on the Applicant and does not shift. The Applicants merely asserted the Respondent was unlikely to refund without furnishing prima facie evidence of his financial limitation, so the evidential burden never shifted to the Respondent.

Whether an Appeal is rendered nugatory depends on what is to be stayed. This is a money decree arising from an illegal sale of land; the Applicants contended the Respondent could not refund but produced no evidence of his insolvency. The Respondent in fact suffered grave loss, having lost land and continued to face financial hardship.

The Applicants attached a memorandum of appeal filed on 12/4/2021, two years after the Notice of Appeal. The court declined to assess merits since evaluating prospects of success of an appeal against its own judgment is impermissible; the relevant test is whether the Appeal would be rendered nugatory.