Josephine Egwa Mbela (suing as Personal Representative of the Easter of Eric William Mbela (Deceased) v Elizabeth Wanjiku Muchira & another [2022] KEELC 580 (KLR)
The bottom line
#A Kenyan High Court refused to pause eviction because the applicant showed no proof of hardship and offered no security for the judgment debt.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was brought without unreasonable delay
The application filed on 21st December 2021, before expiry of the 120-day vacancy period ending 18th March 2022, was filed without unreasonable delay.
The court noted that judgment was delivered on 11th November 2021 with 120 days given to vacate, expiring 18th March 2022. The application filed on 21st December 2021 fell well within that window, so the delay condition was satisfied even though the other conditions failed.
Whether the applicant demonstrated substantial loss
The applicant failed to demonstrate substantial loss; no material showed inability to secure alternative accommodation or special-needs modification of the house.
The applicant resided on the suit property for ten years since its sale to the 2nd Defendant and must have known she would eventually vacate. Mere assertion of long residence and lack of alternative accommodation, without supporting material, did not establish substantial loss. The court balanced this against the successful party's right to the fruits of its judgment.
Whether the applicant offered security for due performance of the decree
The applicant merely stated willingness to abide by any conditions on security without actually offering security.
Furnishing security is a mandatory condition under Order 42 Rule 6(2). A vague undertaking of willingness to abide by conditions the court may impose does not amount to the giving of security, so this condition was not met.
Correction of the date of judgment under Section 99 of the Civil Procedure Act
The court corrected a typographical error in the judgment date from 18th November 2021 to 11th November 2021 under Section 99 of the Civil Procedure Act.
The court record confirmed judgment was delivered on 11th November 2021; the date 18th November 2021 was a typographical error which the court had power to correct under the slip-rule provision.
Legal principles established
#- An applicant for stay of execution pending appeal must establish the application was made without unreasonable delay, that substantial loss will result unless stay is granted, and must furnish security for due performance of the decree
Court orders
#- 1.The Notice of Motion dated 21st December 2022 seeking stay of execution of the judgment delivered on 11th November 2021 is dismissed with no orders as to costs
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010 and enabling provisions of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephine Egwa Mbela (suing as Personal Representative of the Easter of Eric William Mbela (Deceased) v Elizabeth Wanjiku Muchira & another [2022] KEELC 580 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/580/eng@2022-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.