Philip Kiprotich Tuitoek v Edna Jebiwott Kiplagat & 2 others [2021] KEELC 3248 (KLR)

The court observed that although the prayers sought injunctions, the application was anchored on Order 42 Rule 6 and the submissions were on stay of execution. The court elected to treat it as a stay application in the interest of justice, applying the overriding objective, while cautioning the applicant to be clear on the orders sought.

Substantial loss is the cornerstone of stay applications. The applicant merely stated she would suffer substantial loss without specifying the nature of the loss. If monetary, the respondent deponed he was a man of means able to refund the value of the land. Financial ability of a decree holder is not the sole determinant, but on the facts no substantial loss was shown.

The appeal arises from rulings dismissing the applicant's applications to set aside the ex parte judgment and for review. Citing authorities, the court held such dismissals are negative orders incapable of execution or stay. The court also noted the applicant had filed three applications and a related suit over the same parcel, all dismissed, and allowing the present application would perpetuate abuse of process.

Under Order 42 Rule 6(2)(b), the applicant must furnish such security as the court orders for due performance of the decree. Citing Aron C. Sharma v Ashana Raikundalia, the court noted the purpose of security is to guarantee due performance, not to punish the judgment debtor. The applicant offered none, defeating the application on this limb too.

The ruling complained of was delivered on 15th October 2020 and the application was filed on 28th October 2020. The court found this about two-week interval did not amount to unreasonable delay, satisfying one of the conditions for stay, though the application failed on the others.