Gitonga Daniel Mbaabu (Suing as the Administrator of the Estate of Julius Mbaabu-Deceased) v Wambu Wainaina & another; Westmall Supermarket Limited & another (Affected Parties) [2021] KEELC 3088 (KLR)
The bottom line
#The Mombasa Environment and Land Court dismissed an injunction pending appeal because the applicants never proved the actual loss they claimed they would suffer.
What this practically means
#Executive summary
#Key legal issues
#Availability of injunction pending appeal
An injunction pending appeal is a lawful remedy that may be sought as a form of stay under Order 42 Rule 6
The court held that Order 42 Rule 6 does not define 'stay of execution' and a stay may take many forms, including staying payment, eviction, or other orders. Order 42 Rule 6(6) explicitly empowers the court to grant temporary injunction in its appellate jurisdiction. Injunctions are therefore not restricted to interlocutory injunctions under Order 40 pending hearing of a suit, and there is no bar to seeking an injunction pending appeal.
Substantial loss under Order 42 Rule 6(2)
Applicants failed to demonstrate substantial loss; the application fails on this threshold
The three principles under Order 42 Rule 6(2) are substantial loss, security, and absence of unreasonable delay. Delay was not an issue, but the applicants only asserted a risk of eviction without deposing to when they moved into the premises, what they do there, or the effect an eviction would have. The prior ruling of 20 September 2018 also doubted whether they were in possession. Without demonstrating the actual loss, the claim of substantial loss fails.
Relevance of arguability of the appeal
The merit or arguability of the intended appeal is not among the considerations for stay of execution pending appeal under Order 42 Rule 6(2)
Although the applicants attempted to show they have a good and arguable appeal, the court held that arguability is not a consideration when determining an application for stay of execution pending appeal. The application must be assessed only on the three statutory principles: substantial loss, security, and absence of unreasonable delay.
Legal principles established
#- An order of stay pending appeal may take the form of an injunction; nothing bars an applicant from seeking an injunction pending appeal among the remedies comprising stay pending appeal
- A mere statement that one will suffer substantial loss, without demonstration of the actual loss, is insufficient to satisfy Order 42 Rule 6(2)
Court orders
#- 1.The application dated 8 October 2018 seeking an injunction pending appeal is dismissed with costs to the plaintiff
- 2.The mandatory order compelling that the plaintiff be put into possession pending hearing of the suit remains
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules as read with Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitonga Daniel Mbaabu (Suing as the Administrator of the Estate of Julius Mbaabu-Deceased) v Wambu Wainaina & another; Westmall Supermarket Limited & another (Affected Parties) [2021] KEELC 3088 (KLR)", Case Analysis (2021). Notice of motion application dated 8 October 2018 (suit commenced by plaint filed 30 March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3088/eng@2021-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.