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ELCAllowedNot stated in the ruling (ELC suit, Plot No. 110 Komarock Infills-Huruma Self Help)· [2022] KEELC 1657 (KLR)

Mary Nyambura Macharia v County Government of Nairobi [2022] KEELC 1657 (KLR)

Environment and Land Court
3 February 2022
1,211 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court paused collection of a Kshs 7 million land judgment because the losing party showed it could not recover the money if its appeal succeeded.

What this practically means

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Executive summary

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On 3rd August 2021 the Environment and Land Court at Nairobi entered judgment for the plaintiff against the defendant, granting a permanent injunction over Plot No. 110 Komarock Infills-Huruma Self Help, declaring the plaintiff the beneficial owner of the suit property, and awarding special damages of Kshs. 870,000/-, general damages of Kshs. 6,040,000/- for illegal demolition and violation of the plaintiff's right to a fair hearing, plus costs. The defendant, aggrieved, filed notice of intention to appeal to the Court of Appeal and requested certified proceedings. By a Notice of Motion dated 16th September 2021 brought under Order 42 Rule 6 of the Civil Procedure Rules, supported by the affidavit of Erick Odhiambo Abwao, the defendant sought stay of execution pending appeal, citing the risk of the appeal being rendered nugatory and substantial loss. The plaintiff opposed, alleging the application was abusive and intended to deny her the fruits of a judgment she had awaited for 10 years, and proposed deposit of the decretal amount in a joint interest-earning account. Ruling on 3rd February 2022, S. Okong'o J applied Order 42 Rule 6(2) and the Kenya Shell v Karuga substantial-loss principle, holding that recovery of over Kshs. 7,000,000/- from the plaintiff upon a successful appeal would be difficult. The stay was granted for 12 months or until determination of the appeal, whichever came earlier, conditional on deposit of Kshs. 7,000,000/- as security within 30 days, with automatic discharge in default; each party to bear its own costs of the application.

Key legal issues

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01

Whether the defendant demonstrated substantial loss under Order 42 Rule 6(2)(a)

Holding

The court found that a decretal sum in excess of Kshs. 7,000,000/- (damages plus costs) would be a substantial loss if paid and later difficult to recover from the plaintiff upon a successful appeal

Reasoning

The court reasoned that the decree was for a substantial sum of over Kshs. 7,000,000/- including costs. If the defendant paid the plaintiff and subsequently succeeded on appeal, recovery of the money from the plaintiff could prove difficult. The court applied the Kenya Shell v Karuga principle that substantial loss is the cornerstone of the jurisdiction to grant stay, and found the threshold met, noting the defendant was willing to abide by conditions.

p. 2
02

What security should be imposed for the due performance of the decree

Holding

The court adopted the plaintiff's own proposed condition - deposit of the decretal amount in an interest-earning account in the joint names of the parties' advocates

Reasoning

The defendant had offered to abide by any conditions the court imposed. The plaintiff proposed deposit of the entire decretal amount in an interest-earning bank account in the joint names of the advocates on record. The court found this condition reasonable and incorporated it as the security, with automatic discharge of the stay in default of compliance within 30 days.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone for granting a stay of execution; without evidence of substantial loss, an applicant is not entitled to have the respondent kept out of their money
  • Substantial loss may be established where payment of a substantial decretal sum may be difficult to recover from the decree-holder if the appeal succeeds

Court orders

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  1. 1.Execution of the judgment dated 2nd July 2021 delivered on 3rd August 2021 and the decree issued on 9th September 2021 is stayed for a period of 12 months or until the hearing and determination of the intended appeal to the Court of Appeal, whichever comes earlier
  2. 2.The defendant shall deposit in an interest earning bank account in Nairobi in the joint names of the advocates on record for the parties a sum of Kshs. 7,000,000/- as security within 30 days, in default of which the stay shall stand discharged automatically without further reference to the court
  3. 3.Each party shall bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (1)

  • Kenya Shell Limited v Karuga
    (1982 - 1988) I KAR 1018
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, "Mary Nyambura Macharia v County Government of Nairobi [2022] KEELC 1657 (KLR)", Case Analysis (2022). Not stated in the ruling (ELC suit, Plot No. 110 Komarock Infills-Huruma Self Help). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1657/eng@2022-02-03

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