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ELCPartially AllowedNot stated in the judgment (appeal from Busia CMCC Case No. 432 of 2014)· [2022] KEELC 3232 (KLR)

Gogni Rajope Construction Company Limited v Dennis (Environment and Land Appeal 2 of 2022) [2022] KEELC 3232 (KLR)

Environment and Land Court
4 August 2022
1,978 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed an appeal to continue only after the appellant paid part of the award, showing courts now expect part-payment before halting execution.

What this practically means

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Executive summary

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This is a ruling by A. Omollo J dated 4 August 2022 on an application for stay of execution pending appeal, brought under order 51 rule 1 and order 42 rule 6(1) of the Civil Procedure Rules, section 3A of the Civil Procedure Act and provisions of the Environment and Land Court Act. The applicant, Hannington Raburu Juma, sought to stay a judgment of 11 January 2022 in Busia CMCC Case No. 432 of 2014 awarding the respondent Kshs.672,000 mesne profits, Kshs.230,000 repair charges, Kshs.500,000 general damages, plus costs and interest. The applicant argued he had an arguable appeal, brought the application without delay, and feared the decretal sum would be irrecoverable given the respondent's unknown means; he offered a bank guarantee as security. The respondent opposed, contending the tenancy was terminated and premises handed over on 30 November 2018 in the presence of both advocates, that the appeal was a delaying tactic, and that he had the means to repay as a landlord. The court found the application was filed without undue delay but held that substantial loss was not proved, since the parties' landlord/tenant relationship revealed an identifiable source of income for repayment. Nonetheless, to balance the appellant's right of appeal against the respondent's decree, a conditional stay was granted: the applicant was to pay Kshs.650,000 within 45 days, failing which the stay would automatically lapse. Costs of the application were awarded to the successful party in the appeal.

Key legal issues

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01

Substantial loss

Holding

The applicant failed to prove substantial loss; where the decretal sum is capable of repayment, refusal to stay outright is warranted, though a conditional stay may issue to facilitate the appeal

Reasoning

The applicant claimed he was unaware of the respondent's means. The court found the parties had a landlord/tenant relationship, so the respondent had rental income as an identifiable source of funds, making the claim of irrecoverability dishonest. Since damages awarded can be repaid if the appeal succeeds, substantial loss was not established. Nonetheless, to balance the appellant's right of appeal against the respondent's decree, a conditional stay was granted on part-payment of Kshs.650,000.

p. 5
02

Undue delay

Holding

The application was brought without undue delay, having been filed about a month after the judgment

Reasoning

Judgment was delivered on 11 January 2022, the memorandum of appeal filed on 11 February 2022, and the stay application on 17 February 2022. Applying the guidance in Butt v Rent Restriction Tribunal, the court found the application satisfied the requirement that it be made without unreasonable delay.

p. 4
03

Security and form of security

Holding

Security may take many forms, including a bank guarantee, so long as it adequately protects the opposite party

Reasoning

Relying on Nduhiu Gitahi v Warugongo as cited in Michael Ntouthi Mitheu v Abraham Kivondo Musau, the court accepted that the form of security is immaterial provided it is adequate. The applicant had offered a bank guarantee, but the court instead conditioned the stay on part-payment of the decretal amount.

p. 3

Legal principles established

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  • An application for stay of execution is governed by the conditions in order 42 rule 6(2): substantial loss, absence of unreasonable delay, and security for due performance of the decree
  • Execution is a lawful process and its mere carrying out is not of itself evidence of substantial loss; the applicant must show the decretal sum would be irrecoverable or that payment would occasion difficulty
  • A conditional stay may issue to balance the appellant's right of appeal against the decree-holder's rights

Court orders

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  1. 1.Stay of execution of the decree and judgment appealed from granted pending hearing and determination of the appeal, conditional on the applicant paying the respondent Kshs.650,000 within 45 days of delivery of the ruling
  2. 2.In default of payment within 45 days, the stay automatically lapses
  3. 3.Costs of the application awarded to the successful party in the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure RulesOrder 42 rule 6(1)
  • Civil Procedure RulesOrder 42 rule 6(2)
  • Civil Procedure RulesOrder 46 rule 6(2) (as cited by the applicant in submissions)
  • Civil Procedure ActSection 3A
  • Environment and Land Court ActSections 13(2), 16A and 26(4)

Cases cited (7)

  • National Industrial Credit Bank Limited vs. Aquinans Francis Wasike
    Court of Appeal Civil Application No. 238/2005
  • Edward Kamau & Another vs. Hannah Mukui Gichuki & another
    (2015) eKLR
  • Nduhiu Gitahi vs. Warugongo
    (1988) KLR 621; 1 KAR 100 (1988-92) 2 KAR 100
  • Michael Ntouthi Mitheu vs. Abraham Kivondo Musau
    (2021) eKLR
  • Kenya Shell Limited vs. Kibiru & another
    (1986-1981) E.A 266
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Jessikay Enterprises Ltd vs. George Kahoto Muiruri
    [2022] eKLR
On appeal from
Busia Chief Magistrate's Court
Busia CMCC Case No. 432 of 2014
Jurisdiction invoked
Order 51 rule 1 and order 42 rule 6(1) of the Civil Procedure Rules; section 3A of the Civil Procedure Act; sections 13(2), 16A and 26(4) of the Environment and Land Court 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, "Gogni Rajope Construction Company Limited v Dennis (Environment and Land Appeal 2 of 2022) [2022] KEELC 3232 (KLR)", Case Analysis (2022). Not stated in the judgment (appeal from Busia CMCC Case No. 432 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3232/eng@2022-08-04

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