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ELCDismissed· [2022] KEELC 2926 (KLR)
Ministry & another v Were & 4 others (Suing on behalf of themselves and on behalf of the members of the Holy Trinity Church In Africa) (Environment & Land Case 879 of 2015) [2022] KEELC 2926 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The defendants/applicants filed a notice of motion on July 5, 2021 under sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, seeking stay of execution of a decree issued following judgment delivered on September 5, 2019 by Hon. S. Kibunja, pending appeal. They contended they had an arguable appeal with high probability of success, that the appeal would be rendered nugatory if the decretal amount of Kshs. 513,524.06 was paid over, and offered to deposit such sums as the court might order into a joint escrow account. The plaintiffs/respondents filed grounds of opposition, arguing the application was frivolous, made almost two years after judgment without explanation, that substantial loss and an arguable appeal had not been demonstrated, that no security had been offered, and that the 2nd defendant, despite swearing to liquidate the decretal sum by monthly instalments of Kshs. 100,000 from June 30, 2021, had not paid a single instalment. The matter came up on September 21, 2021 and November 10, 2021, when parties were directed to file and exchange submissions, which they failed to do. Antony Ombwayo J found the parties had failed to comply with the court's orders and that the application lacked merit. He dismissed the application with costs to the plaintiffs/respondents. The ruling was delivered electronically pursuant to Covid-19 directions issued by the Chief Justice on March 15, 2020.
Key legal issues
#01
Whether the applicants satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6
Holding
The application lacked merit and was dismissed with costs
Reasoning
The applicants filed the application nearly two years after the judgment of September 5, 2019, without explaining the delay. The 2nd defendant had sworn he would liquidate the decretal sum by monthly instalments from June 30, 2021 but paid none, indicating bad faith. No security, such as deposit of taxed costs in an interest-earning account, was offered, and substantial loss and an arguable appeal were not demonstrated. Parties also failed to comply with the court's directions to file submissions.
p. 4
Legal principles established
#- An application for stay of execution must satisfy the conditions of Order 42 Rule 6, including reasonable delay, substantial loss, arguable appeal and security for due performance
Court orders
#- 1.The defendants' notice of motion application for stay of execution pending appeal is dismissed
- 2.Costs of the application awarded to the plaintiffs/respondents
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ministry & another v Were & 4 others (Suing on behalf of themselves and on behalf of the members of the Holy Trinity Church In Africa) (Environment & Land Case 879 of 2015) [2022] KEELC 2926 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2926/eng@2022-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.