Julius Muthungu Mukanda v Mbulung’a Kituma [2021] KEELC 3690 (KLR)
The bottom line
#A Kenyan land dispute court refused to pause a ruling because the applicant gave no real evidence he would suffer harm if execution proceeded.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant satisfied the three conditions for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010
The application was made timeously (about one month), but the Applicant failed to demonstrate substantial loss and failed to demonstrate ability to provide security; there was therefore no sufficient cause to stay execution
The court accepted that the three prerequisites under Order 42 Rule 6(2) are substantial loss, absence of unreasonable delay, and security. Delay of about one month from the Ruling of 28th January 2020 to filing on 27th February 2020 was held to be in sufficient time. However, the Applicant merely repeated the phrase 'substantial loss' without evidencing threatened execution; indeed, Exhibit JMM1 showed neither party had liberty to deal with the suit property pending determination of ownership. On security, the Applicant offered only a bald statement of willingness. Guided by Butt v Rent Restriction Tribunal and Kenya Shell Ltd v Kibiru, the court found no sufficient cause and dismissed the application with costs.
Legal principles established
#- Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution; without evidence of substantial loss, an appeal is rarely rendered nugatory
- A party alleging substantial loss bears an evidentiary burden which mere repetition of the phrase cannot discharge
Court orders
#- 1.The application dated 26th February 2020 seeking stay of execution of the Ruling delivered on 28th January 2020 is dismissed
- 2.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (stay of execution pending intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Muthungu Mukanda v Mbulung’a Kituma [2021] KEELC 3690 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 26th February 2020; related to Makueni HCSC No. 197 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3690/eng@2021-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.