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ELCDismissedNot stated in the judgment· [2022] KEELC 580 (KLR)

Josephine Egwa Mbela (suing as Personal Representative of the Easter of Eric William Mbela (Deceased) v Elizabeth Wanjiku Muchira & another [2022] KEELC 580 (KLR)

High Court of Kenya (court not expressly named in the judgment)
24 March 2022
1,762 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling by L. Komingoi, Judge, delivered in Nairobi on 24th March 2022, determines a Notice of Motion dated 21st December 2021 (erroneously typed 2022) by the Plaintiff, Josephine Egwa Mbela, seeking stay of execution of the court's orders of 11th November 2021 pending an intended appeal, under Order 42 Rule 6 of the Civil Procedure Rules, 2010. The application was opposed by both defendants through replying affidavits sworn on 22nd February 2022 and canvassed by oral submissions on 1st March 2022. Before determining the motion, 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 framed two issues: whether the application was merited, and costs. Applying Order 42 Rule 6(2) and settled authorities, the court found the application filed without unreasonable delay, but held that the plaintiff failed to demonstrate substantial loss: she had lived on the suit property for ten years since its sale to the 2nd Defendant and produced no material showing she could not secure alternative accommodation or that the house had been modified for special needs. She also merely offered willingness to abide by security conditions rather than furnishing security. Balancing these failures against the successful party's entitlement to the fruits of judgment, the court found the application did not meet the Order 42 Rule 6(2) requirements and dismissed it with no orders as to costs.

Key legal issues

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01

Whether the application was brought without unreasonable delay

Holding

The application filed on 21st December 2021, before expiry of the 120-day vacancy period ending 18th March 2022, was filed without unreasonable delay.

Reasoning

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.

p. 3
02

Whether the applicant demonstrated substantial loss

Holding

The applicant failed to demonstrate substantial loss; no material showed inability to secure alternative accommodation or special-needs modification of the house.

Reasoning

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.

p. 3
03

Whether the applicant offered security for due performance of the decree

Holding

The applicant merely stated willingness to abide by any conditions on security without actually offering security.

Reasoning

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.

p. 3
04

Correction of the date of judgment under Section 99 of the Civil Procedure Act

Holding

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.

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 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

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure ActSection 99

Cases cited (5)

  • Feissal Amin Janmohammed T/A Dunvia Fowarders Vs Shami Trading Co Ltd
    [2014] Eklr
  • Vishram Ravji Halai Vs Thornton & Turpin [1963] Ltd
    [1990] Klr 365
  • Antoine Ndiaye Vs African Virtual University
    [2015] Eklr
  • Andrew Kuria Njuguna Vs Rose Kuria (Nairobi) Civil Case No 224 Of 2001
    Unreported
  • Machira T/A Machira & Co. Advocates Vs East African Standard (No 2)
    [2002] Klr 63
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 and enabling provisions of law

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.