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ELCAllowedKapsabet Civil Appeal (Memorandum of Appeal dated 16th September 2021 against Kapsabet SPMCC No. 70 of 2018); Notice of Motion dated 2nd November 2021· [2022] KEELC 1550 (KLR)

Micah Reuben Isiye v Winny Wamula Saisi & 2 others [2022] KEELC 1550 (KLR)

High Court of Kenya
15 February 2022
1,063 words in judgment
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The bottom line

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Kenya's High Court granted a landowner a stay of execution on appeal, holding that having to reverse a land transfer later counts as real loss worth protecting.

What this practically means

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Executive summary

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This is a ruling of the High Court at Kapsabet (M. N. Mwanyale, J) on a Notice of Motion dated 2nd November 2021 in which the applicant, Micah Reuben Isiye, sought stay of execution of the judgment and decree of Hon. J. Orwa in Kapsabet SPMCC No. 70 of 2018, pending his appeal raising 11 grounds. The decree was non-monetary: it compelled the appellant to subdivide and transfer 0.1 acre out of Nandi/Kapkangani/522 to the respondent. The court set out the Order 42 Rule 6 principles - substantial loss, absence of unreasonable delay, and security. On substantial loss, although the supporting affidavit did not demonstrate loss, the court adopted the reasoning in the G.N. Mueni case that substantial loss need not be monetary, holding that if successful on appeal the appellant would have to seek restitution under Section 91 of the Civil Procedure Act, which amounted to substantial loss. On delay, the application was filed about five weeks after the Memorandum of Appeal, which was timeously and without inordinate delay. On security, none had been offered, but the court held it could order security on its own motion. The court was satisfied the appeal would be rendered nugatory without a stay and allowed the application in terms of prayer No. 3. It ordered the Land Registrar Nandi County to register a restriction on the title within 14 days, and the appellant to deposit the original title with the Deputy Registrar within 30 days, failing which the stay lapses. Costs of the application were awarded in the cause.

Key legal issues

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01

Substantial loss

Holding

Substantial loss established because the decree is a non-monetary one compelling transfer of land, and reversal would require restitution proceedings

Reasoning

The decree required the appellant to subdivide and transfer 0.1 acre of Nandi/Kapkangani/522. Relying on the G.N. Mueni decision that substantial loss need not be a lot of money, the court held that if the appellant succeeded on appeal he would have to apply for restitution under Section 91 of the Civil Procedure Act, which constitutes substantial loss sufficient to justify stay.

p. 2
02

Unreasonable delay

Holding

No inordinate delay; application filed about five weeks after the Memorandum of Appeal

Reasoning

The Memorandum of Appeal was filed on 29th September 2021 and the application on 2nd November 2021, a period of about five weeks. The court found this to be timeously filed without inordinate delay, satisfying the second principle under Order 42 Rule 6.

p. 2
03

Security

Holding

Although the applicant offered no security, the court may order security of its own motion and did so by requiring deposit of the title and registration of a restriction

Reasoning

The applicant had not offered security for performance of the decree, but the court held it could order security on its own motion. To preserve the suit property and balance the respondent's interests, it required registration of a restriction on the title and custody of the original title by the Deputy Registrar, failing which the stay would lapse.

p. 2

Legal principles established

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  • Stay of execution pending appeal in the High Court requires demonstration of substantial loss, absence of unreasonable delay and furnishing of security under Order 42 Rule 6
  • Substantial loss need not be monetary; hardship such as having to seek restitution after transferring land can constitute substantial loss

Court orders

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  1. 1.Stay of execution granted in terms of prayer No. 3 of the Notice of Motion dated 2nd November 2021
  2. 2.The Land Registrar Nandi County to register a restriction on Nandi/Kapkangani/522 within 14 days
  3. 3.The appellant to deposit the original title of Nandi/Kapkangani/522 with the Deputy Registrar within 30 days, failing which the stay orders lapse
  4. 4.Costs of the application in the cause
On appeal from
Senior Principal Magistrate's Court, Kapsabet
SPMCC No. 70 of 2018
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Micah Reuben Isiye v Winny Wamula Saisi & 2 others [2022] KEELC 1550 (KLR)", Case Analysis (2022). Kapsabet Civil Appeal (Memorandum of Appeal dated 16th September 2021 against Kapsabet SPMCC No. 70 of 2018); Notice of Motion dated 2nd November 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1550/eng@2022-02-15

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