Loice Wanjiru Mugwe & another v Evanson Kiarie & another [2022] KEELC 791 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Unreasonable delay
The application filed almost seven months after judgment was brought after inordinate, unexplained delay, failing the Order 42 rule 6(2) threshold.
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.
Substantial loss and merits of the appeal
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.
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.
Preliminary objection on service of notice of appeal
The preliminary objection failed because the annexed notice of appeal showed service on the 1st Defendant's advocates on 5 March 2019.
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.
Legal principles established
#- 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
#- 1.The preliminary objection dated 24th October 2019 is dismissed
- 2.The notice of motion dated 26th August 2019 is dismissed
- 3.Costs of the application awarded to the Defendants/Respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.