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ELCDismissedEnvironment and Land Case Civil Suit 438 of 2016· [2022] KEELC 15061 (KLR)

Machage v Kiruri (Sued on his capacity as the 1st Defendant and as the legal representative of the Estate of Eunice Wariara Ngigi (Deceased) who was the 2nd Defendant herein)

Environment and Land Court
24 November 2022
2,766 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to pause a Kshs 6 million refund judgment because the buyer didn't appeal that part and offered no security.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (FM Njoroge, J) determined the plaintiff's notice of motion dated July 5, 2022 seeking stay of execution of the court's judgment and decree of May 25, 2022 pending an intended appeal. The judgment had held that a sale agreement dated March 12, 2011 over LR No 4815/5 and LR No 4815/6 was unenforceable under section 3(3) of the Law of Contract Act, ordered the defendant to refund Kshs 6,000,000 plus interest from filing, and directed the plaintiff to vacate within 90 days, failing which eviction could follow. The plaintiff argued the application was filed without delay, that he would suffer substantial loss through eviction, destruction of developments and cutting of trees, and offered security. The defendant countered that the plaintiff did not appeal the refund order, had planted crops after judgment, and had furnished no security. Applying Order 42 rule 6(1) and (2) and the criteria in Masisi Mwita v Damaris Wanjiku Njeri (drawing on Halal v Thornton & Turpin and Hassan Guyo Wakalo), the court found the application was filed without unreasonable delay but held that no substantial loss or irreparable harm was shown: the refund order was not being appealed, interest would compensate for delayed payment, and the refund could be enforced by execution. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the application for stay was filed without unreasonable delay

Holding

The application was filed timeously; judgment was delivered May 25, 2022, a notice of appeal was lodged June 6, 2022, and the application followed promptly, so there was no unreasonable delay

Reasoning

The court noted the notice of appeal on record lodged June 6, 2022 and treated the existence of an intended appeal as established for stay purposes. Measured against the May 25, 2022 judgment date, the filing was expeditious, satisfying the delay limb of Order 42 rule 6(2).

p. 4
02

Whether the plaintiff would suffer substantial loss if stay is not granted

Holding

No substantial loss or irreparable harm was demonstrated: the refund order of Kshs 6,000,000 plus interest was not challenged on appeal, and interest compensates for any delay in payment

Reasoning

The court weighed the plaintiff's claims of eviction, tree-cutting and demolition against the defendant's point that the refund order was unchallenged. Since the intended appeal targeted only the enforceability finding, the decretal refund remained payable and enforceable, and interest would compensate for delayed payment, the plaintiff failed to establish substantial loss.

p. 5
03

Whether security for due performance of the decree had been furnished

Holding

The plaintiff offered no security; his suggestion that the defendant's refund obligation constitutes security was rejected

Reasoning

The defendant argued, and the court accepted, that the plaintiff had not furnished any security as required by Order 42 rule 6(2)(b) and could not rely on the refund award as security. This independently defeated the application alongside the failure to prove substantial loss.

p. 2

Legal principles established

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  • The purpose of a stay of execution pending appeal is to preserve the subject matter of the appeal so the appeal is not rendered nugatory
  • Stay of execution requires substantial loss, application without unreasonable delay, security for due performance, and demonstration that the appeal will be rendered nugatory if stay is refused

Court orders

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  1. 1.The plaintiff's notice of motion application dated July 5, 2022 seeking stay of execution pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 42 rule 6(1) and (2)
  • Civil Procedure RulesOrder 51 rule 1
  • Law of Contract ActSection 3(3)

Cases cited (6)

  • Michael Ntouthi Mitheu v Abraham Kivondo Musau
    [2021] eKLR

    Filed without unreasonable delay - relied on by plaintiff

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

    Conditions for stay of execution - relied on by defendant

  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR

    Stay of execution principles - relied on by defendant

  • Masisi Mwita v Damaris Wanjiku Njeri
    [2016] eKLR (Civil Appeal No 107 of 2015)

    Criteria for stay including Halal & Another v Thornton & Turpin Ltd conditions and nugatory-appeal test

  • Halal & Another v Thornton & Turpin Ltd

    Three conditions for stay: sufficient cause, substantial loss, security, plus no unreasonable delay

  • Hassan Guyo Wakalo v Straman EA Ltd
    (2013)

    Applicant must prove the appeal will be rendered nugatory if stay is not granted

Jurisdiction invoked
Section 3A of the Civil Procedure Act; Order 42 rule 6 and Order 51 rule 1 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, "Machage v Kiruri (Sued on his capacity as the 1st Defendant and as the legal representative of the Estate of Eunice Wariara Ngigi (Deceased) who was the 2nd Defendant herein)", Case Analysis (2022). Environment and Land Case Civil Suit 438 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15061/eng@2022-11-24

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