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ELCDismissed· [2022] KEELC 791 (KLR)

Loice Wanjiru Mugwe & another v Evanson Kiarie & another [2022] KEELC 791 (KLR)

High Court of Kenya
10 March 2022
1,270 words in judgment
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The bottom line

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The High Court dismissed a request to halt execution of a judgment because the applicants waited seven months and couldn't show they'd lose anything.

What this practically means

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Executive summary

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This is a ruling of the High Court at Nairobi (L. Komingoi J) delivered on 10 March 2022 on a Notice of Motion dated 26 August 2019 by the Plaintiffs/Applicants seeking stay of execution of the judgment and decree of 21 February 2019, in effect a temporary injunction restraining the Defendants from demolishing, evicting or interfering with their occupation of land parcel Dagoretti/Kangemi/631 pending appeal. The application was supported by the affidavit of Peris Njuhi Mugwe and opposed by a replying affidavit of Evanson Kahira Kiarie together with a preliminary objection dated 24 October 2019 contending that the notice of appeal was not served. The court dismissed the preliminary objection, finding from the annexed notice of appeal that the 1st Defendant's advocates were served on 5 March 2019. On the motion, the court applied Order 42 rule 6(2) of the Civil Procedure Rules. It found the application filed almost seven months after judgment with no explanation, amounting to inordinate delay. It further found that since the court had earlier held the plaintiffs failed to prove contribution towards the purchase of the suit property, there was nothing to protect, and that substantial loss, chances of success on appeal, and even proof of an existing appeal in the Court of Appeal were not demonstrated; no security was offered. Applying Peter Samoei v Isaac K. Ruto, the court dismissed the application with costs to the Defendants/Respondents.

Key legal issues

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01

Unreasonable delay

Holding

The application filed almost seven months after judgment was brought after inordinate, unexplained delay, failing the Order 42 rule 6(2) threshold.

Reasoning

Judgment was delivered on 21 February 2019 and the application was dated 26 August 2019, a gap of nearly seven months. The applicants offered no explanation for the delay, which independently disqualifies the application under Order 42 rule 6(2)(a) requiring the application to be made without unreasonable delay.

p. 2
02

Substantial loss and merits of the appeal

Holding

The applicants failed to demonstrate substantial loss, chances of success, or even the existence of an appeal in the Court of Appeal three years after judgment.

Reasoning

The court relied on its own judgment findings that the plaintiffs had not proved contribution towards purchase of the suit property, leaving nothing to protect. Applying the test in Peter Samoei v Isaac K. Ruto, the applicants also failed to show the appeal had high chances of success, and no material confirmed an appeal existed at all. No security was offered.

p. 2
03

Preliminary objection on service of notice of appeal

Holding

The preliminary objection failed because the annexed notice of appeal showed service on the 1st Defendant's advocates on 5 March 2019.

Reasoning

The 1st Defendant contended he was not served with the notice of appeal. The 1st Plaintiff's supplementary affidavit annexed the notice of appeal dated 22 February 2019 confirming service on the firm of Onsando Ongongi & Tiego Advocates on 5 March 2019, so the objection lacked merit and was dismissed.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal must show filing without unreasonable delay, substantial loss, and an offer of security; the test is the same across courts and does not require establishing the merits of the appeal.

Court orders

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  1. 1.The preliminary objection dated 24th October 2019 is dismissed
  2. 2.The notice of motion dated 26th August 2019 is dismissed
  3. 3.Costs of the application awarded to the Defendants/Respondents

Authorities

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Legislation

  • High Court (Practice and Procedure) Rulesrule 3(2) of Part 1
  • Judicature Act, Cap 8section 10
  • Civil Procedure Rules 2010Orders 42 and 43; sections 1A, 1B, 3A and 63
  • Constitution of Kenyaarticle 40

Cases cited (1)

  • Peter Samoei vs Isaac K. Ruto
    [2012] eKLR
Jurisdiction invoked
Order 42 rule 6(2) of the Civil Procedure Rules, sections 1A, 1B, 3A and 63 of the Civil Procedure Act and article 40 of the Constitution

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, "Loice Wanjiru Mugwe & another v Evanson Kiarie & another [2022] KEELC 791 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/791/eng@2022-03-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.