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ELCAllowedEnvironment & Land Case 413 of 2015· [2022] KEELC 14838 (KLR)

Limo v Kutto & another

Environment and Land Court
18 November 2022
1,393 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped an eviction pending appeal because the homeowner would lose her family home, but only after she deposits Kshs. 100,000 as security.

What this practically means

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Executive summary

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By a Notice of Motion dated February 24, 2022, Rosa Jeptoo Limo, the plaintiff in Environment & Land Case 413 of 2015, sought a stay of execution of the decree and all consequential orders arising from the judgment delivered on February 23, 2022, pending her intended appeal, and in the alternative an order of status quo. She argued she had filed an appeal, that she and her children resided on the suit property which was her matrimonial home and would be rendered homeless if evicted, that the application was made without inordinate delay, that she was willing to abide by reasonable conditions, and that the respondents would suffer no prejudice as they had never utilized the property. The application was canvassed by written submissions. J.M Onyango J framed a sole issue: whether the Applicant met the conditions for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. Relying on M.O.M Amin Transporters, Equity Bank v Taiga Adams and other authorities, the court held all three conditions must be satisfied simultaneously. It found substantial loss established because eviction from the uncontroverted matrimonial home would destroy the substratum of the appeal; that the application filed a day after judgment was made without delay; and that the Applicant's willingness to abide by conditions demonstrated readiness to furnish security. The court granted a stay of execution pending the intended appeal on condition that the Applicant deposits Kshs. 100,000/= in court within 30 days as security for costs, failing which the stay lapses automatically, with costs of the application to abide the appeal.

Key legal issues

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01

Whether the Applicant demonstrated substantial loss

Holding

Yes - the suit property is her matrimonial home where she resides with her children, and eviction before the appeal would destroy the substratum of the appeal.

Reasoning

The Applicant deposed that the suit property is her matrimonial home where she lives with her children. That fact was not controverted by the Respondent at trial. Eviction before the appeal is determined would render the appeal nugatory, satisfying the substantial-loss condition.

p. 3
02

Whether the application was made without unreasonable delay

Holding

Yes - the application was filed a day after judgment was delivered.

Reasoning

The judgment was delivered on February 23, 2022 and the Notice of Motion was dated February 24, 2022, so the application was filed without any delay whatsoever, satisfying the timeliness condition under Order 42 Rule 6.

p. 3
03

Whether the Applicant offered security for costs

Holding

Yes - her deposition that she would abide by any reasonable conditions as to costs sufficed.

Reasoning

The Applicant deposed willingness to abide by any reasonable conditions the court might impose regarding costs. The court found this a sufficient demonstration of willingness to furnish security, and imposed a conditional deposit of Kshs. 100,000/= within 30 days.

p. 3

Legal principles established

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  • All three conditions in Order 42 Rule 6 for stay of execution pending appeal must be satisfied simultaneously before the court may exercise its discretion.

Court orders

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  1. 1.Stay of execution of the decree issued vide the judgment delivered on February 23, 2022 granted pending the hearing and determination of the intended appeal, on condition that the Applicant deposits Kshs. 100,000/= in court within 30 days as security for costs; failing which the stay automatically lapses
  2. 2.Costs of the application to abide the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (9)

  • M.O.M Amin Transporters Limited & Another v Alexander Ndung'u Mbugua & 2 Others
    [2017] eKLR

    All three conditions for stay must be met and satisfied simultaneously.

  • Equity Bank Limited v Taiga Adams Company Limited
    [2006] eKLR

    All requirements under Order 42 Rule 6 must be met for stay to be granted.

  • Wangalawa & Another v Agnes Naliaka Cheseto
    (2012) eKLR

    Applicant must show execution would irreparably affect the essential core of the appeal.

  • Silverstein N. v Chesoni
    (2002) 1 KLR 867

    Discussion of what substantial loss entails.

  • Mukuma v Abuoga

    Substantial loss is the cornerstone of the jurisdiction to grant stay.

  • Dawie Chebutal Rotich & 2 others v Emirates Airlines
    Civil Case No. 368 of 2001

    Substantial loss assessed by totality of consequences awaiting the applicant.

  • Kiplagat Kotut vs Rose Jebor Kipngok
    [2015] eKLR

    Stay not granted unless Order 42 Rule 6 conditions satisfied (quoted within M.O.M Amin).

  • Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others
    [2012] eKLR

    Stay not granted unless Order 42 Rule 6 conditions satisfied (quoted within M.O.M Amin).

  • Kenya Shell Limited vs Kibiru

    Stay not granted unless Order 42 Rule 6 conditions satisfied (quoted within M.O.M Amin).

Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "Limo v Kutto & another", Case Analysis (2022). Environment & Land Case 413 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14838/eng@2022-11-18

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