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ELCPartially AllowedMakueni (Appeal arising from Makindu SPMCC No. 18 of 2014)· [2021] KEELC 3704 (KLR)

Sammy Muthengi Kite v Veronica Mutola Kalusi [2021] KEELC 3704 (KLR)

Environment and Land Court
19 April 2021
CMC.G. Mbogo
1,357 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped execution of a Kshs. 118,280 judgment only if the appellant deposits the money in a joint account within 45 days.

What this practically means

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Executive summary

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The Appellant, Sammy Muthengi Kite, moved the court by notice of motion dated 26th November 2019 under Order 22 Rule 22, Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act, seeking a stay of execution of the judgment of Hon. Principal Magistrate L.N. Wasige delivered on 1st October 2019 in Makindu SPMCC No. 18 of 2014, pending the hearing and determination of his appeal. He argued that the Respondent had taken out the decree and certificate of costs amounting to Kshs. 118,280/=, that he was a man of meagre means, and that she was a woman of straw, so the appeal would be rendered nugatory. The Respondent opposed, contending the Applicant had not sought stay at the lower court, had not paid the decretal amount, and that filing an appeal does not operate as a stay. The court applied the conditions in Order 42 Rule 6(2) as guided by Butt v Rent Restriction Tribunal and Kenya Shell Ltd v Kibiru. It found the delay of about two months was not inordinate, but held that the Applicant had not demonstrated substantial loss and had not convinced the court of his ability to provide security. Balancing the Respondent's undoubted right to enjoy the fruits of her judgment, the court conditionally allowed the application, granting a stay on condition that the Applicant deposits Kshs. 118,280/= into a joint interest-earning account of the advocates within 45 days, failing which the Respondent may execute. Costs were to abide the appeal.

Key legal issues

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01

Substantial loss

Holding

Mere assertions of meagre means and that the Respondent is a woman of straw do not discharge the evidentiary burden of demonstrating substantial loss

Reasoning

The court found no evidence of threatened execution by the Respondent. The Applicant's bare statements about his meagre means and the Respondent's impecuniosity, without more, barely discharged the evidentiary burden attached to proving substantial loss under Order 42 Rule 6(2).

p. 3
02

Reasonable delay

Holding

A delay of about two months from judgment to the filing of the application was not inordinate

Reasoning

Judgment was delivered on 1st October 2019 and the application filed on 28th November 2019, a span of about two months, which the court held was not so inordinate as to avert the court's discretion.

p. 2
03

Security for due performance

Holding

The Applicant failed to establish ability to provide security; the court nonetheless granted a conditional stay requiring deposit of the decretal amount

Reasoning

The court held the Respondent has an undoubted right to enjoy the fruits of her judgment, and balanced this by granting stay only upon the Applicant depositing Kshs. 118,280/= in a joint interest-earning account within 45 days, failing which execution may issue.

p. 3

Legal principles established

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  • The power to grant or refuse a stay of execution is discretionary and must be exercised so as not to prevent an appeal or render it nugatory
  • Substantial loss is the cornerstone of the jurisdiction to grant a stay

Court orders

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  1. 1.Stay of execution of the judgment in Makindu SPMCC No. 18 of 2014 granted (prayer No. 3) on condition that the Applicant deposits the decretal amount of Kshs. 118,280/= into an interest-earning account in the joint names of the Advocates on record within forty-five (45) days
  2. 2.In default of the deposit, the Respondent shall be at liberty to execute

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 22 Rule 22
  • Civil Procedure Rules, 2010Order 42 Rule 6 (2)
  • Civil Procedure Rules, 2010Order XLI Rule 4
  • Civil Procedure ActSection 3A

Cases cited (4)

  • Butt -Vs- Rent Restriction Tribunal
    [1982] KLR 417
  • Kenya Shell Ltd -Vs- Kibiru
    [1986] KLR 416
  • Victory Construction -Vs- BM (A minor suing through next friend one PMM)
    [2019] eKLR
  • HE –Vs- SM
    [2020] Eklr
On appeal from
Principal Magistrate's Court
Makindu SPMCC No. 18 of 2014
Jurisdiction invoked
Order 22 Rule 22, 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sammy Muthengi Kite v Veronica Mutola Kalusi [2021] KEELC 3704 (KLR)", Case Analysis (2021). Makueni (Appeal arising from Makindu SPMCC No. 18 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3704/eng@2021-04-19

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