Samson Marigo Makubo v Joseph Mwita Ragita & 4 others [2021] KEELC 4190 (KLR)
The bottom line
#A Kenyan land court paused enforcement of its own orders, but only because the applicant promised to deposit Kshs. 80,000 in court within thirty days.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss and delay under Order 42 Rule 6(2)
The applicant established substantial loss and that the seven-month delay was not inordinate given the COVID-19 pandemic and the circumstances
The court noted the appeal had been deemed duly filed and was pending before the Court of Appeal. Delay is assessed on the facts of each case per Chemwolo, and the pandemic's disruption of court operations from March 2020 explained the timeline. Allowing taxation to proceed would cause the applicant great financial detriment and render a successful appeal nugatory.
Negative order incapable of stay
Authorities on negative orders were distinguishable on the facts; the decree posed a real risk of rendering the appeal nugatory
The defendants relied on Muema and related authorities holding that dismissal orders are negative and not capable of stay. The court held those cases were decided on their own facts and that the filed appeal would be rendered nugatory if stay were refused, citing Silverstein, and invoked the court's power to preserve the subject matter of an appeal.
Security for due performance
Security was required and fixed at Kshs. 80,000 within thirty days, default lapsing the stay
No person is exempt from providing security for due performance of a decree as the statute requires. The type and quantum of security lie in the court's discretion based on the circumstances, following Gichine. The court therefore conditioned the stay on a deposit of Kshs. 80,000 within thirty days.
Legal principles established
#- A party seeking stay of execution must satisfy the cumulative conditions of substantial loss, no unreasonable delay and provision of security under Order 42 Rule 6(2)
- Delay in filing a stay application is judged against the facts and surrounding circumstances of each case
- The court has discretion as to the kind of security to be provided for due performance of a decree
- The court has authority to issue orders for interim preservation of the subject matter of an appeal
Court orders
#- 1.Stay of execution of the orders issued on 15th January 2020 and the Bill of Costs dated 22nd July 2020 pending determination of the intended appeal (Order 3 of the application granted)
- 2.Costs of the application to abide the outcome of Civil Appeal No. 116 of 2020 pending before the Court of Appeal at Kisumu
- 3.Applicant to deposit security of Kshs. 80,000 in court within thirty days, failing which the stay lapses automatically
- Jurisdiction invoked
- Order 51 of the Civil Procedure Rules, 2010 as read with sections 1A and 1B of the Civil Procedure Act (Cap 21) and Order 12 Rule 7; section 3 of the Environment and Land Court Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Samson Marigo Makubo v Joseph Mwita Ragita & 4 others [2021] KEELC 4190 (KLR)", Case Analysis (2021). Not stated in extract (Civil Appeal No. 116 of 2020 pending before the Court of Appeal at Kisumu referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4190/eng@2021-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.