Hezekiah Macharia Wanyoike & another v Kenya Medical Research Institute & another [2022] KEELC 1098 (KLR)
The bottom line
#A Kenyan court refused to pause a land case judgment because the applicants waited two years, showed no real loss, and there was nothing to stay.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The Applicants failed to demonstrate substantial loss; bare claims of construction and farming on the land were too circumstantial without empirical documentary evidence
The court found that assertions that the Applicants had built a house, carried out dairy farming and business on the land lacked documentary backing such as photographs, receipts or structural designs. Letters of allotment and a gazette notice did not prove they would suffer substantial loss if the judgment were executed.
Inordinate delay
The application filed on 27th September, 2021, some two years after the judgment of 1st February, 2019, was inordinate and inexcusable
The court rejected the three explanations offered - the Respondents' alleged invasion of the land on 17th August 2021, the lethargy of previous advocates, and the delay in transferring the file from Voi High Court - as wishy-washy and unconvincing, holding that an applicant must move court promptly from the date of judgment.
Security for costs
The Applicants' conditional and casual undertaking as to security betrayed no commitment, and offering the disputed land as security was unconvincing since ownership of the land was itself the dispute
The court held that the Applicants had casually and conditionally offered security only if the orders were granted. Because the suit land's ownership was the very subject of the appeal, apportioning the land as security was unconvincing, and this ingredient also failed.
Nothing capable of being stayed
The trial court's judgment merely dismissed the suit with costs, no decree was extracted, and no execution had taken place, so there was nothing to stay
Concurring with the 1st Respondent's counsel and the authority of Catherine Njeri Maraga v Serah Chege & Another, the court held that a dismissal with costs is a negative order; the only possible execution would be as to costs, and no decree had been extracted since the judgment of 1st February 2019.
Legal principles established
#- For a stay of execution pending appeal to issue, the applicant must establish sufficient cause, substantial loss, that the application was made without inordinate delay, and furnish security
- There is nothing to stay where the trial court merely dismissed the suit with costs, as the only thing executable is costs
Court orders
#- 1.THAT the Notice of Motion application dated 27th September, 2021 is hereby dismissed
- 2.THAT for expediency sake the Appeal to be heard and finally disposed off within the next ninety (90) days from the day of this ruling
- 3.THAT the matter to be mention on 5th April, 2022 for purposes of taking directions of the filed appeal under the Provisions of Section 79B of the Civil Procedure Act Cap. 21 and Order 42 Rules 11 of the Civil Procedure Rules 2010
- 4.THAT the costs of the Notice of Motion application to be borne by the Appellants/Applicants to the 1st Respondent
- On appeal from
- Taveta Principal Magistrate's Court
- Civil Case No. 22 of 2015
- Jurisdiction invoked
- Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hezekiah Macharia Wanyoike & another v Kenya Medical Research Institute & another [2022] KEELC 1098 (KLR)", Case Analysis (2022). Voi Civil Appeal No. 8 of 2019 (transferred to the Environment & Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1098/eng@2022-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.