Awadh v Kalume & another (Environment & Land Case 5 of 2019) [2023] KEELC 249 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Conditions for stay of execution pending appeal under Order 42 rule 6(2)
The applicant must demonstrate substantial loss, that the application was made without unreasonable delay, and furnish security; the discretion must be exercised judiciously
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.
Whether the applicant demonstrated substantial loss or a subject matter to preserve
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
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.
Legal principles established
#- 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
#- 1.The application dated April 5, 2022 seeking stay of execution pending appeal is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.