Joseph Mutua Zakayo v County Government of Makueni ( others [2021] KEELC 4407 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to pause execution of a land judgment because the losing defendants offered no evidence of harm and no security.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants demonstrated substantial loss under Order 42 Rule 6(2)
No; the Applicants merely asserted substantial loss without discharging the evidentiary burden
The court found that the Applicants merely repeated the assertion of substantial loss without evidentiary support. Following Kenya Shell Ltd v Kibiru, substantial loss is the cornerstone of a stay application. No evidence showed the Plaintiff could not repay the decretal amount, and the suit property was already adjudged to belong to the Plaintiff, so no danger of waste arose.
Whether the application was filed without unreasonable delay
Yes; the five-week delay was reasonable given the 60-day stay already granted
Judgment was delivered on 28th May 2020 with a 60-day stay lapsing on 28th July 2020. The Notice of Appeal was filed on 10th June 2020 and the application on 3rd July 2020, a span of about five weeks. The court held the application was made in sufficient time when the threat of execution became apparent, satisfying the delay requirement.
Whether security for due performance of the decree was offered
No; the Applicants did not express willingness to abide by any order for security
The Plaintiff noted no willingness by the Applicants to commit to a specified amount for due performance of the decree. The court found the Applicants had not expressed in their supporting affidavit any willingness to abide by a security order, failing the third condition of Order 42 Rule 6(2) and negating sufficient cause for a stay.
Legal principles established
#- Substantial loss is the cornerstone for granting a stay of execution; without evidence of it, a stay should rarely issue
- The court's discretion to grant a stay must be exercised so as not to prevent an appeal, but no stay lies without sufficient cause
Court orders
#- 1.The application dated 3rd July, 2020 is dismissed
- 2.Costs of the application awarded to the Plaintiff/Respondent
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act
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.
- Kimoli v County Government of Kitui & another[2023] KEELC 15694 (KLR)16 Feb 2023
Cite this brief
#Cite this brief
Caselaw, "Joseph Mutua Zakayo v County Government of Makueni ( others [2021] KEELC 4407 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4407/eng@2021-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.