Mary Nyambura Macharia v County Government of Nairobi [2022] KEELC 1657 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the defendant demonstrated substantial loss under Order 42 Rule 6(2)(a)
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
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.
What security should be imposed for the due performance of the decree
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
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.
Legal principles established
#- 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
#- 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.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.Each party shall bear its own costs of the application
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.