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ELCDismissedNotice of Motion dated 24th February, 2021· [2022] KEELC 2141 (KLR)

Argos Furnishers Limited v Samuel Musila & 37 others [2022] KEELC 2141 (KLR)

Environment and Land Court
17 January 2022
COChristine Ochieng
1,497 words in judgment
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The bottom line

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A Kenyan court refused to pause execution of a land judgment because the applicant waited four months, showed no loss, and applied in the wrong court.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos on a Notice of Motion dated 24th February 2021 in which the Plaintiff sought stay of execution of a judgment delivered on 30th October 2020, which had dismissed the Plaintiff's suit with costs and allowed the Defendants' counterclaim on the basis that the Defendants on the suit land had acquired it through adverse possession. The Plaintiff, having filed a Notice of Appeal on 5th November 2020 and applied for certified proceedings on 10th November 2020, sought stay pending its intended appeal after being served with a draft Decree. The 30th Defendant opposed, contending the application was an afterthought made four months after judgment, that no Record of Appeal had been filed, and that no security for due performance of the decree had been offered. The court framed a single issue: whether the Plaintiff was entitled to stay of execution pending appeal. Reviewing Order 42 Rule 6(2) of the Civil Procedure Rules and Rule 5(b) of the Court of Appeal Rules, and associating itself with authorities including Butt v Rent Restriction Tribunal and Wangalwa v Cheseto, the court held that the Plaintiff had not demonstrated substantial loss, had delayed unreasonably, and had offered no security. Further, since a Notice of Appeal had already been lodged in the Court of Appeal, the stay application ought to have been made in that court. The court dismissed the application with costs and set aside the interim orders that had been in place.

Key legal issues

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01

Whether the Plaintiff was entitled to stay of execution pending appeal

Holding

The application was unmerited and dismissed

Reasoning

The court noted that judgment had dismissed the Plaintiff's suit and allowed the Defendants' counterclaim on adverse possession. The Plaintiff did not demonstrate substantial loss, applied for stay only four months after judgment upon being served with a draft decree, and provided no security. Since a Notice of Appeal had been lodged in the Court of Appeal, the proper forum for the stay application was that court. The threshold under Order 42 Rule 6(2) was not met.

p. 2
02

Whether the application was brought without unreasonable delay

Holding

It was not; the Plaintiff only sought stay four months after judgment, upon service of a draft decree

Reasoning

Judgment was delivered on 30th October 2020 and the Plaintiff filed a Notice of Appeal on 5th November 2020 but never sought stay until served with a draft Decree, applying on 24th February 2021. Unreasonable delay is a ground for refusal under Order 42 Rule 6(2)(a).

p. 2

Legal principles established

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  • An applicant for stay of execution must satisfy the conditions in Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security for due performance of the decree
  • Where a Notice of Appeal has been lodged in the Court of Appeal, an application for stay pending appeal should be filed in that court under Rule 5(b) of the Court of Appeal Rules

Court orders

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  1. 1.The Plaintiff's Notice of Motion application dated 24th February, 2021 is dismissed with costs
  2. 2.The interim orders that were in place are set aside
On appeal from
High Court (suit judgment of this court)
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules; Rule 5(b) of the Court of Appeal Rules (Appellate Jurisdiction Act)

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, "Argos Furnishers Limited v Samuel Musila & 37 others [2022] KEELC 2141 (KLR)", Case Analysis (2022). Notice of Motion dated 24th February, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2141/eng@2022-01-17

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