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ELCDismissedEnvironment & Land Case 36 of 2020· [2022] KEELC 13591 (KLR)

Ngugi v Kamau & another

Environment and Land Court
13 October 2022
LGL. N. Gacheru
3,896 words in judgment
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The bottom line

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A Kenyan court refused to pause a land judgment because the losing party offered no real evidence of loss and had not filed an actual appeal.

What this practically means

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Executive summary

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This ruling by L.N. Gacheru J of the Environment and Land Court at Murang'a determined a notice of motion dated July 4, 2022 by the 2nd defendant, Stanley Kinuthia Kamau, seeking stay of execution of the court's judgment of June 23, 2022, which had cancelled his title to the suit land and registered it in the plaintiff's name, pending an intended appeal to the Court of Appeal. The applicant argued he was a bona fide purchaser for value who had fully developed the property with a commercial building occupied by tenants, that he would suffer irreparable substantial loss if the title was cancelled and tenants evicted, that the application was brought without delay, and that he was willing to furnish security. The plaintiff opposed, asserting his right to enjoy the fruits of the judgment, contending the applicant merely renovated an already-developed property, and proposing alternative security of monthly rent deposits or Kshs 4,950,000. Applying Order 42 rule 6(2) of the Civil Procedure Rules and the Munya principles, the court found no unreasonable delay (application filed 12 days after judgment) but held the applicant failed to demonstrate substantial loss, as mere assertions of threatened eviction and demolition without empirical or documentary evidence are insufficient, and execution is a lawful process that does not itself constitute substantial loss. The court also noted no evidence of attempted execution, and that apart from a notice of appeal, no memorandum of appeal had been filed to show a live appeal. The application was dismissed entirely with costs to the plaintiff/respondent.

Key legal issues

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01

Whether the application was made without unreasonable delay

Holding

The application filed 12 days after judgment was not guilty of unreasonable delay

Reasoning

The judgment was delivered on June 23, 2022 and the application filed on July 5, 2022, 12 days later. Borrowing from Utalii Transport, the court held that while even a day can be delay, on the facts the delay was not inordinate or inexcusable, so the first condition was satisfied.

02

Whether the applicant demonstrated substantial loss

Holding

The applicant failed to demonstrate substantial loss; mere assertions of threatened eviction and demolition without evidence are insufficient

Reasoning

Relying on Samvir Trustees and James Wangalwa, the court held that execution is a lawful process and does not itself amount to substantial loss. The applicant produced only a valuation report and assertions of threats; no evidence of attempted execution existed on the record, and it was contended he did not construct the building.

p. 6
03

Whether the appeal would be rendered nugatory

Holding

The applicant failed to show the appeal would be rendered nugatory; no evidence of attempted execution and no memorandum of appeal showing a live appeal

Reasoning

The onus was on the applicant to show the appeal's success would have no significance. There was no evidence of attempted execution, and apart from the notice of appeal, no memorandum of appeal had been filed, so the court could not confirm an active appeal existed before the Court of Appeal.

04

Whether security for costs should be granted

Holding

Having failed to satisfy the conditions for stay, an order for security would have no legal effect and was refused

Reasoning

The purpose of security is to ensure due performance of the decree. Since the applicant failed the substantive conditions for stay, the court held that granting security would serve no legal purpose and declined to make any security order.

p. 7

Legal principles established

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  • Mere allegations or assertions of substantial loss are insufficient; the applicant must furnish empirical or documentary evidence of the loss
  • The process of execution, by itself, does not amount to substantial loss under Order 42 rule 6
  • A successful party is entitled to the fruits of his judgment, and the court must balance this against the applicant's right of appeal

Court orders

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  1. 1.The notice of motion application dated July 4, 2022 is dismissed entirely with costs to the plaintiff/respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6(2)
  • Constitution of Kenya, 2010general reference
  • Court of Appeal Practice Directionsrules 82 and 83

Cases cited (12)

  • Magdalene Wanjiku Ndungu v Jane Njoki Njuguna
    (2020) eKLR

    Conditions fettering discretion to grant stay: sufficient cause, substantial loss, no unreasonable delay, appeal not rendered nugatory

  • Jason Ngumba Kagu & 2 others v Intra Africa Assurance Co Limited
    [2014] eKLR

    Substantial loss as cornerstone of stay jurisdiction; balancing respondent's right to fruits of judgment against applicant's appeal prospects

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR

    Stay principles: arguable appeal, appeal rendered nugatory, and public interest as third constitutional condition

  • Utalii Transport Company Limited & 3 others v Nic Bank Limited & another
    [2014] eKLR

    What amounts to inordinate delay; litmus test of inexcusable delay

  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR

    Substantial loss is the cornerstone of jurisdiction to grant stay

  • Tropical Commodities Suppliers Ltd and Others v International Credit Bank Limited (in liquidation)
    (2004) EA LR 331

    Definition of substantial loss as a qualitative concept - loss of real worth or value

  • James Wangalwa & another v Agnes Naliaka Cheseto
    (2012) eKLR

    Execution process by itself does not amount to substantial loss; applicant must show irreparable effect

  • Machira T/A Machira & Co Advocates v East African Standard
    (2002) 2 KLR 63

    Applicant must provide specific details of substantial loss; no stay without pecuniary or tangible loss

  • Machira T/A Machira & Co Advocates v East African Standard (No 2)
    [2002] KLR 63

    Successful party entitled to fruits of judgment; overriding objective in stay applications

  • Samvir Trustees Limited v Guardian Bank Limited
    [2007] eKLR

    Allegations of substantial loss require empirical or documentary evidence

  • Shah Munge & Partners Ltd v National Social Security Fund Board of Trustees & 3 others
    [2018] eKLR

    Definition of 'nugatory' - worthless, futile, invalid, trifling or of little legal consequence

  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227

    Meaning of 'nugatory' to be given its full meaning

Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ngugi v Kamau & another", Case Analysis (2022). Environment & Land Case 36 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13591/eng@2022-10-13

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