Margaret Nduta Kamithi & another v Annuciata Waithira Kibue & 2 others [2021] KEELC 4043 (KLR)
The bottom line
#The High Court paused enforcement of a land judgment until an appeal is heard, but only after the losing party deposited Kshs.1 million as security.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants satisfied the Order 42 rule 6(2) conditions for stay of execution pending appeal
The court found the application was filed without undue delay and that the applicants demonstrated substantial loss, warranting a stay conditioned on the deposit of security
The court applied the three conjunctive conditions in Order 42 rule 6(2): substantial loss, absence of unreasonable delay, and security. It found the notice of appeal was filed within days of judgment and the application followed promptly, and accepted the applicants' evidence that effecting transfers of the suit plots would irreparably affect the core of the appeal. Relying on James Wangalwa and Samvir Trustee, it held that the applicants had shown a real risk rendering the appeal nugatory, and granted the stay conditioned on a Kshs.1,000,000/- security deposit.
Whether failure to comply with section 23(2A) of the Advocates Act and Order 51 rule 13(2) rendered the application fatally defective
No; the omission was insignificant and did not affect the substance of the application
The plaintiffs/respondents argued the application was defective because the applicants' advocates failed to comply with section 23(2A) of the Advocates Act and Order 51 rule 13(2) of the Civil Procedure Rules. The court invoked Article 159(2) of the Constitution, holding that justice must be administered without undue regard to procedural technicalities, and found the omission so insignificant that it did not affect the substance of the application.
Whether the court, having delivered judgment, was functus officio and unable to grant stay
The court rejected this as a bar and proceeded to determine the stay application
The plaintiffs/respondents contended that having delivered judgment on 30th September 2020 the court was functus officio, citing Telkom Kenya Ltd v John Ochanda. The court did not adopt that reasoning; it addressed the stay application on its merits under Order 42 rule 6, which expressly contemplates the court that pronounced the decree granting stay pending appeal, and granted the orders sought subject to security.
Legal principles established
#- Under Order 42 rule 6(2), no stay of execution pending appeal shall be granted unless substantial loss is shown, the application is made without unreasonable delay, and security for due performance of the decree is given
- Substantial loss must be supported by evidence, not mere assertion
- Under Article 159(2)(d) of the Constitution, minor procedural technicalities should not defeat substantive justice
Court orders
#- 1.An order for stay of execution of the decree emanating from the judgment delivered on 30th September 2020, granted pending the hearing and determination of the intended appeal
- 2.The stay granted on condition that the defendants/applicants deposit Kshs.1,000,000/- as security for costs in a joint interest-earning account in the names of the plaintiffs' counsel and the defendants' counsel within forty-five (45) days, in default the stay shall lapse
- 3.The costs of the application to be borne by the defendants/applicants
- Jurisdiction invoked
- Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules (2010); Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 63
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Nduta Kamithi & another v Annuciata Waithira Kibue & 2 others [2021] KEELC 4043 (KLR)", Case Analysis (2021). Notice of Motion dated 30th October 2020 (Civil Appeal No. E444 of 2020 pending at the Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4043/eng@2021-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.