Richard v Mbali & another (Civil Appeal E016 of 2021) [2022] KEELC 3875 (KLR)
The bottom line
#A Makueni court refused to pause eviction-related proceedings because the applicant proved neither real loss from execution nor offered security.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The applicant failed to prove substantial loss; she did not annex the prohibitory order or demonstrate imminent danger of eviction
The applicant only stated fear of eviction without demonstrating specific, tangible loss. She did not annex the prohibitory order issued against her nor show imminent danger of eviction from the portion she occupies. Citing Charles Wahome Gethi and Machira, the court held that mere assertion of residence on the land is insufficient; specific details and particulars of loss must be provided.
Delay
The application was filed without unreasonable delay
The ruling was delivered on December 1, 2021 and the application was filed on December 15, 2021, a two-week interval. The court found this did not amount to undue delay, so this condition was satisfied.
Security for costs
The applicant failed to provide or offer security for the due performance of the decree
Order 42 rule 6(2)(b) is mandatory. The applicant neither provided security nor expressed willingness to provide security for any decree ultimately binding on her. As the conditions are cumulative, failure on this and on substantial loss was fatal to the application.
Legal principles established
#- The three conditions in order 42 rule 6(2) for stay of execution pending appeal are cumulative and all must be satisfied
- An applicant for stay must prove, not merely allege, substantial loss
- Security under order 42 rule 6 is mandatory and is meant to guarantee due performance of the decree, not to punish the judgment debtor
Court orders
#- 1.The notice of motion dated December 14, 2021 is dismissed
- 2.Costs of the application to the respondents
- On appeal from
- Magistrates' Court (Makueni)
- CMCC E035 of 2021 / ELC Case No E035 of 2021
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act, order 50 rule 6 and order 42 rule 6 of the Civil Procedure Rules and article 50 of the Constitution (appellate stay of execution jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard v Mbali & another (Civil Appeal E016 of 2021) [2022] KEELC 3875 (KLR)", Case Analysis (2022). Notice of motion dated December 14, 2021 (arising from CMCC E035 of 2021 / ELC Case No E035 of 2021, Makueni). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3875/eng@2022-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.