Rael Musyoki & another v Paul Mutuku Kiswii [2021] KEELC 4520 (KLR)
The bottom line
#A Kenyan court refused to pause eviction proceedings because the applicants offered no real evidence of harm and no security for the judgment debt.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The Applicants failed to demonstrate the substantial loss they would suffer; mere assertion without evidence discharges neither the evidentiary burden nor the requirement of Order 42 Rule 6(2)
The court found the Applicants merely repeated that they stood to suffer substantial loss without adducing factual particulars or evidence. Relying on Kenya Shell Ltd v Kibiru, it held that where there is no evidence of substantial loss, it is a rare case in which an appeal would be rendered nugatory. Accordingly this prerequisite condition was not satisfied.
Unreasonable delay
The application filed about six weeks after judgment was made within sufficient time, as a temporary stay of 60 days granted by the court was still running until 21st July, 2020
Judgment was delivered on 21st May 2020, a Notice of Appeal was filed on 15th June 2020 and the application on 6th July 2020. The court noted it had earlier granted temporary stay for 60 days lapsing on 21st July 2020, so the application was made when the threat of execution became apparent, and thus without unreasonable delay.
Security for due performance of the decree
The Applicants did not express willingness to abide by an order for security, supporting the Respondent's assertion that the application was made in bad faith
The third condition under Order 42 Rule 6(2) requires the applicant to furnish security for due performance of the decree. The Applicants expressed no willingness to provide security, which the court accepted as indicative of bad faith and an intention to hamper valid execution of the judgment.
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
- The power to grant or refuse a stay is discretionary and should be exercised so as not to prevent an appeal or render it nugatory
Court orders
#- 1.The application dated 6th July, 2020 is dismissed
- 2.Costs of the application to the 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
#Cite this brief
#Cite this brief
Caselaw, "Rael Musyoki & another v Paul Mutuku Kiswii [2021] KEELC 4520 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 6th July, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4520/eng@2021-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.