Noor Said v Mary Mwawasi Manga [2022] KEELC 1888 (KLR)
The bottom line
#The Environment and Land Court in Mombasa stayed a tenant's eviction only on condition she deposits Kshs. 400,000 as security within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether a mere Notice of Appeal suffices for a stay pending appeal application
An appeal is deemed filed once a Notice of Appeal is given under Order 42 Rule 4, so the application is properly entertained despite no formal appeal being lodged
Counsel for the respondent argued no appeal was on file since only a Notice of Appeal had been lodged, relying on Rule 83 of the Court of Appeal Rules deeming unprosecuted appeals withdrawn. The court held that reference improper, because Order 42 Rule 4 deems an appeal to the Court of Appeal filed when notice of appeal is given, so the application was properly before the court.
Whether the applicant stands to suffer substantial loss
The court was satisfied that eviction and the respondent's dealing with the property could cause the applicant substantial loss if the intended appeal succeeds
The applicant argued that she and her family had occupied the house as their home for about 24 years; if evicted and the house was demolished or sold, she would have no house to return to were she to succeed on appeal. The court accepted this risk, but found the circumstances demanded security given the outstanding Tribunal judgment for rent and vacant possession.
What security should be given
Security of Kshs. 400,000/=, representing accrued rent from May 2000, the auctioneer's bill, projected further rent and allowance for interest and costs, to be deposited in a joint interest-earning account within 30 days
The respondent held a Tribunal judgment for rent and vacant possession, unappealed, and the applicant had remained in possession only through an injunction. The court computed accrued rent at Kshs. 800 per month from May 2000 to December 2021 (Kshs. 197,600), added the executed warrant amount of Kshs. 130,450 and auctioneer's bill of Kshs. 38,000, plus Kshs. 9,600 for an assumed one-year appeal, rounding to Kshs. 400,000.
Whether the application was made without unreasonable delay
No unreasonable delay, judgment having been delivered on 30 September 2021 and the application filed on 5 October 2021
The court noted the short interval between judgment and the application, and this was conceded by counsel for the respondent in her submissions, so the delay limb of Order 42 Rule 6 was satisfied without difficulty.
Legal principles established
#- For purposes of an application for stay pending appeal to the Court of Appeal under Order 42 Rule 4, an appeal is deemed filed when Notice of Appeal has been given
- Three conditions must be satisfied for stay pending appeal: substantial loss, no unreasonable delay, and security for due performance of the decree
Court orders
#- 1.Stay of execution of the judgment delivered on 30 September 2021 granted conditional upon deposit of security of Kshs. 400,000/= by the applicant
- 2.The applicant to prove availability of Kshs. 400,000/= through her counsel within 30 days, and upon proof, deposit it in a joint interest-earning account of counsel for both parties
- 3.If proof of availability of funds is not made within 30 days, there shall be no stay and the judgment may be executed by the respondent
- 4.If funds are made available, costs of the application to abide the costs of the appeal; if not, the applicant to shoulder the costs of the application
- On appeal from
- Magistrate's Court at Mombasa
- SRMCC No. 3901 of 2000
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (application for stay pending appeal to the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Noor Said v Mary Mwawasi Manga [2022] KEELC 1888 (KLR)", Case Analysis (2022). Not stated (arising from SRMCC No. 3901 of 2000 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1888/eng@2022-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.