Kamau v Ruraya & 4 others
The bottom line
#A Kenyan court refused to pause eviction because the losing party waited too long, proved no real loss, and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was made without unreasonable delay
The application was brought after inordinate delay; judgment was delivered on March 17, 2022 with 90 days given to vacate, and the applicants waited until just before expiry of that period to file
The court noted that upon delivery of judgment the defendants were given ninety days to vacate the suit property or be evicted. That period was sufficient time to move the Court of Appeal for stay orders. Filing only just before the expiry of the ninety days constituted inordinate delay, defeating the first condition of Order 42 rule 6(2)(a).
Whether the applicants demonstrated substantial loss
No substantial loss was demonstrated; the applicants' adverse possession claim had been dismissed and they had no lawful claim to the suit land
The applicants claimed they resided on the suit land and would be prejudiced if it were transferred to third parties. The court found the affidavits unconvincing: their adverse possession claim had been dismissed at trial, leaving them without lawful claim to the land. Citing Michira, mere assertion of substantial loss without specific details and particulars is insufficient.
Whether security for due performance had been given
The 1st defendant merely stated willingness to deposit security without actually giving security as ordered
The 1st defendant only stated on affidavit that he was willing to deposit security as ordered by the court, which does not satisfy Order 42 rule 6(2)(b). His argument that the respondent failed to show capacity to compensate was rejected because the burden of compliance never shifts from the applicant.
Legal principles established
#- The burden of demonstrating the Order 42 rule 6 conditions for stay rests on the applicant and never shifts to the respondent
- A successful party is entitled to the fruits of his judgment
Court orders
#- 1.Notice of motion dated May 30, 2022 dismissed with costs to the plaintiff/respondent
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 rule 6, Order 22 rule 22 and Order 51 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kamau v Ruraya & 4 others", Case Analysis (2022). Environment & Land Case 530 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13323/eng@2022-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.