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ELCDismissedNot stated in the judgment text· [2023] KEELC 249 (KLR)

Awadh v Kalume & another (Environment & Land Case 5 of 2019) [2023] KEELC 249 (KLR)

Environment and Land Court
24 January 2023
1,439 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court refused to pause execution of a land judgment because the building had already been demolished, so there was nothing left to protect while the appeal was heard.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated April 5, 2022 in which the plaintiff, against whom judgment had been entered by Hon Justice N.A. Matheka on March 22, 2022 dismissing his suit with costs to the 1st defendant, sought a stay of execution pending an intended appeal. The application was brought under Order 51 rules 1 and 3, Order 42 rule 6 of the Civil Procedure Rules, 2010 and sections 1, 1A, 3 and 3A of the Civil Procedure Act. The applicant argued that the 1st defendant could take possession of the suit land and continue construction, exposing him to loss, that he had filed a notice of appeal in time, and that stay was needed to preserve his appellate rights. The 1st respondent opposed, maintaining that the judgment was well reasoned, that the applicant had shown no loss, had introduced new facts in the memorandum of appeal, and that any stay should be conditional on a deposit of Kshs 1,500,000 as security. The court restated the Order 42 rule 6(2) conditions: substantial loss, application without unreasonable delay, and security, drawing on the authorities including Halal v Thornton & Turpin, Masisi Mwita v Damaris Wanjiku Njeri and Consolidated Marine v Nampijja. It held that the purpose of stay is preservation of the subject matter, but since the applicant's own pleadings showed the structure was already demolished, no further loss could be occasioned, there was no subject matter to preserve and no arguable appeal was demonstrated. The application was accordingly dismissed with costs on January 24, 2023.

Key legal issues

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01

Conditions for stay of execution pending appeal under Order 42 rule 6(2)

Holding

The applicant must demonstrate substantial loss, that the application was made without unreasonable delay, and furnish security; the discretion must be exercised judiciously

Reasoning

The court restated Order 42 rule 6 and the case law requiring sufficient cause, substantial loss, no unreasonable delay and security, and additionally that the appeal would be rendered nugatory if stay is refused. These conditions are cumulative; failure to prove one dislodges the other. The applicant failed to show any remaining subject matter or loss to justify staying the decree.

p. 2
02

Whether the applicant demonstrated substantial loss or a subject matter to preserve

Holding

The court found that the applicant's structure had already been demolished, so no further loss could be occasioned and there was no subject matter to preserve, nor an arguable appeal

Reasoning

The court noted the applicant himself pleaded that the structure was demolished, and his compensation claim lay against the 2nd defendant, not the 1st. Since the property's character had already changed, the purpose of stay — preservation of the subject matter — could not be served, and the application therefore failed.

p. 3

Legal principles established

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  • The purpose of stay pending appeal is to preserve the substratum of the case, especially in land matters where the character of the suit property may change while the appeal is pending
  • Courts should not deprive a successful litigant of the fruits of litigation; the discretion to grant stay must be exercised judiciously upon proof of substantial loss, no unreasonable delay and security

Court orders

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  1. 1.The application dated April 5, 2022 seeking stay of execution pending appeal is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6
  • Civil Procedure Rules, 2010Order 51 rules 1 and 3
  • Civil Procedure Actsections 1, 1A, 3 and 3A

Cases cited (6)

  • Masisi Mwita vs Damaris Wanjiku Njeri
    Civil Appeal No 107 of 2015, (2016) eKLR
  • Halal & another vs Thornton & Turpin Ltd
  • Hassan Guyo Wakalo vs Straman EA Ltd
    (2013)
  • Canvass Manufacturers Ltd vs Stephen Reuben Karunditu
    Civil Application No 158 of 1994, (1994) LLR 4853
  • Stephen Wanjohi vs Central Glass Industries Ltd
    Nairobi HCC No 6726 of 1991
  • Consolidated Marine vs Nampijja & another
    Civil App No 93 of 1989 (Nairobi)
Jurisdiction invoked
Order 42 rule 6 and section 51 rules 1 and 3 of the Civil Procedure Rules, 2010; sections 1, 1A, 3 and 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, "Awadh v Kalume & another (Environment & Land Case 5 of 2019) [2023] KEELC 249 (KLR)", Case Analysis (2023). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/249/eng@2023-01-24

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