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ELCPartially AllowedThika ELC Appeal (from Thika MCL&E Case No. 74 of 2020); Notice of Motion dated 19th January 2021· [2021] KEELC 3335 (KLR)

Martin Chege Kahari v Letshego Kenya Limited & another [2021] KEELC 3335 (KLR)

High Court of Kenya (Environment and Land Court, Thika)
13 May 2021
LGL. Gacheru
1,721 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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The Applicant, Martin Kahari Chege, moved the Court by Notice of Motion dated 19th January 2021 under Order 42 Rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking stay of a ruling delivered on 8th December 2020 by Hon. J. M. Nangea (Chief Magistrate) in Thika MCL&E Case No. 74 of 2020, which had dismissed his injunction application against the sale by public auction of Title No. Gatuanya/Ngoliba/Block 1/1889, charged to the 1st Respondent bank to secure a loan of Kshs.1,500,000/=. The Respondents opposed, arguing the ruling was a negative order incapable of execution. The court framed two issues: entitlement to stay of execution and entitlement to stay of the auction. On the first, the court held that the ruling under appeal was a negative order - it only dismissed the injunction application with costs in the cause - so no stay of execution could issue, applying Milcah Jeruto v Fina Bank Ltd and Western College v Oronga. On the second, the court reasoned that if the auction proceeded the appeal would be rendered nugatory, and following Consolidated Marine v Nampijja granted a conditional stay of the auction: the Appellant to deposit Kshs.300,000/= in his account with the 1st Respondent within 7 days, failing which the stay would lapse automatically, and to file the Record of Appeal within 30 days. The application therefore partially succeeded: stay of execution refused, stay of auction granted on conditions.

Key legal issues

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01

Whether stay of execution lies against the ruling of 8th December 2020

Holding

Stay of execution was refused because the ruling was a negative order dismissing an injunction application, with nothing to execute save costs

Reasoning

Order 42 Rule 6(2) requires substantial loss, absence of unreasonable delay and security. The court found the trial ruling dismissed the injunction application and ordered no party to do or refrain from doing anything, so only costs were executable. Following authority on negative orders, stay of execution could not issue against such a ruling.

p. 2
02

Whether the impending auction of the charged property should be stayed pending appeal

Holding

Stay of the auction was granted conditional on deposit of Kshs.300,000/= within 7 days and filing of the Record of Appeal within 30 days

Reasoning

The court reasoned that if the property were sold, the appeal would be rendered nugatory and a mere academic exercise. Stay pending appeal preserves the subject matter. The court therefore granted a conditional stay, balancing the appellant's right of appeal against the chargee's interests through the deposit condition and a timeline for prosecuting the appeal.

p. 3

Legal principles established

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  • An order for stay of execution cannot be granted in respect of a negative order, one that does not require a party to do or refrain from doing anything.
  • The purpose of stay pending appeal is to preserve the subject matter in dispute so that a successful appeal is not rendered nugatory.

Court orders

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  1. 1.Stay of the proposed public auction of Title No. Gatuanya/Ngoliba/Block 1/1889 pending appeal, on condition that the Appellant deposits Kshs.300,000/= in his Account held with the 1st Respondent within 7 days, failing which the stay lapses automatically
  2. 2.The Appellant to file the Record of Appeal within 30 days from the date of the order, and to prosecute the appeal expeditiously

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 2 (definition of Decree holder)
  • Civil Procedure Rules, 2010Order 42 Rule 6 (and Rule 6(2))
  • Civil Procedure RulesOrder 21 rule 1 (waived for virtual delivery)

Cases cited (3)

  • Milcah Jeruto vs Fina Bank Ltd
    [2013] eKLR
  • Western College of Arts and Applied Sciences vs. Oronga
    (1976) KLR 63 at p. 66
  • Consolidated Marine Vs Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)
On appeal from
Chief Magistrate's Court, Thika
MCL&E Case No. 74 of 2020
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act

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, "Martin Chege Kahari v Letshego Kenya Limited & another [2021] KEELC 3335 (KLR)", Case Analysis (2021). Thika ELC Appeal (from Thika MCL&E Case No. 74 of 2020); Notice of Motion dated 19th January 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3335/eng@2021-05-13

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