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ELCDismissedNot stated in the extract (ELC Nakuru, Notice of motion dated July 21, 2022)· [2023] KEELC 97 (KLR)

Ng'era (Suing as personal representative of Joseph Boro Ng'era) v Sunbird Lodge Limited (Environment & Land Case 75 of 2017) [2023] KEELC 97 (KLR)

Environment and Land Court
19 January 2023
MNMwangi Njoroge
2,514 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 dismissed Sunbird Lodge's request to pause eviction because fearing loss isn't enough—you must prove it with evidence.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (Mwangi Njoroge J, delivered January 19, 2023) determines the defendant/applicant Sunbird Lodge Limited's Notice of motion dated July 21, 2022 seeking stay of execution of a judgment dated May 30, 2022, under Order 42 rule 6(1) & (2) of the Civil Procedure Rules and section 3A of the Civil Procedure Act, pending an appeal to the Court of Appeal. The underlying judgment had held that a lease agreement dated August 25, 2007 between the applicant and the respondent was a nullity for lack of land control board consent and ordered the applicant to vacate the suit property, LR No 9361/6, where it operates Sunbird Lodge. The respondent opposed, arguing the application lacked a valid affidavit (Richard Corcoran being allegedly neither shareholder nor director), that no substantial loss was demonstrated, and that there was delay. The court framed a single issue: whether stay of execution pending appeal should be granted. It found the application filed without unreasonable delay and noted a notice of appeal on record, and that the applicant was willing to furnish security. However, applying Halal v Thornton & Turpin, Samvir Trustee v Guardian Bank and Sammy Some Kosgei v Grace Jelel Boit, the court held that substantial loss is the epicentre of a stay application and must be proved, not merely asserted; mere apprehension of eviction is insufficient. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the application was filed without unreasonable delay

Holding

Filed without unreasonable delay

Reasoning

Judgment was delivered on May 30, 2022 and the application filed on July 25, 2022; the court found this to be without unreasonable delay.

p. 4
02

Whether the applicant demonstrated substantial loss

Holding

Not demonstrated; the application fails on this ground

Reasoning

Assertions of apprehension of eviction and business harm without empirical or documentary evidence do not satisfy the substantial-loss requirement of Order 42 rule 6(2)(a).

p. 5
03

Whether there is an appeal in place and security offered

Holding

A notice of appeal exists and the applicant was ready to offer security, but this could not save the application absent substantial loss

Reasoning

The record shows a notice of appeal filed June 6, 2022 and a willingness to furnish security, but substantial loss is the epicentre and without it the application automatically fails.

p. 5

Legal principles established

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  • Substantial loss is the epicentre of a stay of execution application; mere apprehension of eviction without proof does not establish it

Court orders

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  1. 1.The applicant's Notice of motion dated July 21, 2022 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 42 rule 6(1) & (2)
  • Civil Procedure ActSection 3A

Cases cited (13)

  • Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Dhanji Jadra Ramji v Commissioner of Prisons & another
    [2017] eKLR
  • Gianfranco Manenthi & Another vs Africa Merchant Assurance Company Limited
    [2019] eKLR
  • Focin Motorcycle Co. Limited vs Ann Wambui Wangui & Another
    [2018] eKLR
  • Michael Ntouthi Mitheu vs Abraham Kivondo Musau
    Civil Appeal No E052/2021
  • RWW versus EKW
    HCC No 25/2012
  • James Wangwalwa & Another vs Agnes Naliaka Cheseto
    Misc Civil Application 42/2011
  • Josphat Kitheme Kyalo vs Webster Muema Muambi
    HCCA No 100 of 2017
  • Halal & Another v Thornton & Turpin [1963] Ltd
    [1990] eKLR
  • Hassan Guyo Wakalo vs Straman EA Ltd
    (2013)
  • Samvir Trustee Limited vs Guardian Bank Limited
    Nairobi (Milimani) HCCC 795 of 1997
  • Sammy Some Kosgei V Grace Jelel Boit
    [2013] eKLR
  • Machira t/a Machira & Co v East African Standard
    No 2 (2002) 2 KLR 63
Jurisdiction invoked
Order 42 rule 6(1) & (2) of the Civil Procedure Rules 2010 and section 3A of the Civil Procedure Act

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, "Ng'era (Suing as personal representative of Joseph Boro Ng'era) v Sunbird Lodge Limited (Environment & Land Case 75 of 2017) [2023] KEELC 97 (KLR)", Case Analysis (2023). Not stated in the extract (ELC Nakuru, Notice of motion dated July 21, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/97/eng@2023-01-19

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