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ELCDismissedRuling in Originating Summons dated 17 June 2008 (application dated 2 November 2020)· [2021] KEELC 3190 (KLR)

James Kamau & 42 others v Leonid Limited [2021] KEELC 3190 (KLR)

Environment and Land Court
18 May 2021
MSMunyao Sila
1,063 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Mombasa court dismissed a stay application because the applicants gave no evidence of the loss they would suffer if eviction proceeded.

What this practically means

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Executive summary

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By an Originating Summons filed on 17 June 2008, the applicants sought a declaration that they were entitled to land parcel LR No. 2380/V/MN, registered in the respondent's name, by adverse possession. On 21 September 2020 Omollo J dismissed the suit with costs and ordered the applicants to vacate within 90 days, failing which the respondent could demolish their structures. The applicants filed a Notice of Appeal and then an application dated 2 November 2020 seeking stay of execution pending appeal. The respondent opposed, contending the applicants had not shown a high chance of success or that the appeal would be rendered nugatory. The court applied Order 42 Rule 6(2), requiring demonstration of substantial loss, absence of unreasonable delay, and security for due performance of the decree. It declined to follow Multimedia University v Naituli, noting that the Rule 5(2)(b) Court of Appeal criteria differ, and held that the chances of success of the appeal are not a consideration under Order 42 Rule 6(2). On delay, the court found the application timely since it was filed within the 90-day vacation window. However, on substantial loss - the decisive factor - the court found the seven-paragraph supporting affidavit of James Kamau devoid of any evidence of the loss the applicants would suffer if stay were refused, and held it was not for the court or respondent to speculate. The application was dismissed with costs, with the respondent left at liberty to proceed with execution as the 90 days had long expired.

Key legal issues

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01

Whether substantial loss was demonstrated

Holding

No substantial loss demonstrated; the seven-paragraph supporting affidavit contained no evidence of any loss

Reasoning

The applicant bears the burden of showing exactly what loss he will suffer if stay is not granted, ordinarily through the supporting affidavit, so the court can assess whether the loss is substantial. The affidavit here was brief and merely asserted the appeal would be rendered nugatory without evidencing any loss. The court cannot speculate, so the application must fail.

p. 2
02

Whether there was unreasonable delay

Holding

No unreasonable delay; the application was filed within the 90-day window to vacate

Reasoning

The judgment of 21 September 2020 gave the applicants 90 days to vacate the land. The application was filed on 3 November 2020, before expiry of that period, and so was filed timeously notwithstanding the respondent's contention of delay.

p. 2

Legal principles established

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  • An applicant for stay under Order 42 Rule 6(2) must provide evidence of the substantial loss they stand to suffer; it is not for the respondent or the court to speculate on such loss.
  • The chances of success of the intended appeal are not a consideration under Order 42 Rule 6(2).
  • The Rule 5(2)(b) Court of Appeal stay test differs from the Order 42 Rule 6(2) test.

Court orders

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  1. 1.Application dated 2 November 2020 dismissed with costs
  2. 2.Respondent at liberty to proceed with execution since the 90 days given in the judgment are long gone

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (1)

  • Multimedia University & Another vs Professor Gitile N. Naituli
    (2014) EKLR
Jurisdiction invoked
Order 42 Rule 6(2) 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, "James Kamau & 42 others v Leonid Limited [2021] KEELC 3190 (KLR)", Case Analysis (2021). Ruling in Originating Summons dated 17 June 2008 (application dated 2 November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3190/eng@2021-05-18

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