Githachuri v Gaitho & Gaitho & another; Mbugua (Interested Party) (Environment & Land Case 1 of 2021) [2022] KEELC 3836 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to pause execution of a land judgment because the applicant delayed five months and proved no actual loss.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was filed without unreasonable delay
The five-month delay between the ruling of 22/09/2021 and the application of 9/02/2022 was inordinate.
The court applied Order 42 Rule 6(2) which requires that the application be made without unreasonable delay. The ruling was delivered on 22/09/2021 and the motion filed on 9/02/2022, a gap of five months, which the court held to be inordinate delay disqualifying the applicant from the discretionary remedy of stay.
Whether the applicant demonstrated substantial loss
The applicant failed to prove substantial loss; merely stating the originating summons would be heard afresh was insufficient.
Relying on Samvir Trustee and Century Oil Trading, the court held that assertions of substantial loss must be supported by empirical or documentary evidence. The applicant offered nothing beyond the claim that his 1999 originating summons would be heard afresh, and bore the burden of proving the loss he would suffer if stay was denied.
Whether there was an arguable appeal and security offered
No arguable appeal with high chances of success was demonstrated and no security was offered.
Apart from the Notice of Appeal and a request for typed proceedings, no certificate of delay was exhibited. The court could not identify any compelling ground of appeal and found the Order 42 Rule 6 prerequisites unsatisfied; further, an applicant for stay must offer security for the due performance of the decree, which the applicant did not.
Legal principles established
#- Even an unopposed application must be considered on its merits before it is granted
- A party seeking stay of execution must prove substantial loss, not merely assert it
- The mere filing of a Notice of Appeal does not automatically entitle an applicant to stay of execution
- A successful litigant is entitled to the fruits of judgment unless exceptional circumstances exist
Court orders
#- 1.The Notice of Motion dated 9/02/2022 seeking stay of execution of the ruling delivered on 22/09/2021 is dismissed
- Jurisdiction invoked
- Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githachuri v Gaitho & Gaitho & another; Mbugua (Interested Party) (Environment & Land Case 1 of 2021) [2022] KEELC 3836 (KLR)", Case Analysis (2022). Not stated in judgment (Motion on Notice dated 9/02/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3836/eng@2022-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.