Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the excerpt (ELC at Nyeri)· [2022] KEELC 2800 (KLR)

Kilifi Colours & Dreams Limited v Soso Investments Limited & another (Environment & Land Case 129 of 2015) [2022] KEELC 2800 (KLR)

Environment and Land Court
30 June 2022
JOJ. O. Olola
1,381 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Nyeri (J. O. Olola, J) on a Notice of Motion dated February 24, 2021 by Soso Investments Limited, the 1st defendant, seeking stay of execution of the court's judgment of February 19, 2021 pending an intended appeal to the Court of Appeal. The application was supported by an affidavit of its Director, Francis Samuel Kazungu Bayah, on grounds that a Notice of Appeal had been filed, that the plaintiff's agents threatened forcible eviction, and that execution would render the appeal nugatory. It was opposed by the plaintiff, Kilifi Colours & Dreams Limited, through the affidavit of its Director Peter Cannobio, who denied the eviction threats, asserted the 1st defendant had occupied the premises for 12 years without paying, and offered to accept Kshs.5,000,000/- as security should stay be granted. The 2nd defendant, Emmanuel Patrick Baha, also opposed, arguing the 1st defendant's rights were extinguished by the judgment and that no substantial loss was demonstrated. The court applied Order 42 Rule 6(2) of the Civil Procedure Rules and the authorities of Kenya Shell v Kibiru and Nduhiu Gitahi v Anna Wambui Warugongo. It traced the history: the 1st defendant bought the suit property from the 2nd defendant under a sale agreement dated January 12, 2002 for Kshs.6,500,000/- payable in 60 days, took possession, but never completed payment; the 2nd defendant rescinded by notice of November 7, 2006 and sold the property to the plaintiff, who was transferred it on December 15, 2008 but never obtained possession. The court held the 1st defendant's loss, if any, was quantifiable, while the plaintiff had been deprived of its property for over 12 years. The motion was dismissed with costs.

Key legal issues

#
01

Substantial loss

Holding

The 1st defendant failed to establish substantial loss; its loss, if any, is quantifiable while the plaintiff has been kept out of its property for over 12 years

Reasoning

The court applied Order 42 Rule 6(2) and Kenya Shell v Kibiru, holding substantial loss is the cornerstone of stay jurisdiction. The applicant's occupation of premises purchased under a 2002 sale agreement whose price was never completed meant any loss was measurable in money, not irreparable, whereas the decree-holder had been deprived of possession since December 2008.

p. 3
02

Balancing rights pending appeal

Holding

The court must hold the ring even-handedly between the appellant's right of appeal and the decree-holder's right to enjoy the fruits of judgment

Reasoning

Relying on Nduhiu Gitahi v Anna Wambui Warugongo, the court framed the task as preserving the rights of both parties pending appeal without disadvantaging either side. Applying that balance to the facts, the scales favoured the plaintiff, who had waited over a decade for possession, over the defaulting purchaser seeking to remain on the premises.

p. 3

Legal principles established

#
  • The conditions for stay of execution pending appeal are substantial loss, application made without unreasonable delay, and provision of security as ordered by the court
  • The applicant must establish that execution will irreparably affect or negate the essential core of the applicant as the successful party

Court orders

#
  1. 1.The Notice of Motion dated February 24, 2021 is dismissed
  2. 2.Costs of the application to the plaintiff

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder XL1 Rule 4 (as quoted in Kenya Shell v Kibiru)

Cases cited (2)

  • Kenya Shell Limited v Kibiru
    (1986) KLR 410
  • Nduhiu Gitahi & another v Anna Wambui Warugongo
    (1988) 2 KAR
Jurisdiction invoked
Rule 6(2) of Order 42 of the Civil Procedure Rules (inherent jurisdiction to stay own decree pending appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kilifi Colours & Dreams Limited v Soso Investments Limited & another (Environment & Land Case 129 of 2015) [2022] KEELC 2800 (KLR)", Case Analysis (2022). Not stated in the excerpt (ELC at Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2800/eng@2022-06-30

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