Limo v Kutto & another
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Applicant demonstrated substantial loss
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.
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.
Whether the application was made without unreasonable delay
Yes - the application was filed a day after judgment was delivered.
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.
Whether the Applicant offered security for costs
Yes - her deposition that she would abide by any reasonable conditions as to costs sufficed.
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.
Legal principles established
#- 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
#- 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.Costs of the application to abide the appeal
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.