Njoroge v Hamisi & another (Environment & Land Case 83 of 2017) [2023] KEELC 282 (KLR)
The bottom line
#A Kenyan landowner lost her bid to delay eviction because she waited three years, offered no security, and could not prove real harm.
What this practically means
#Executive summary
#Key legal issues
#Whether the application met the requirements of Order 42 Rule 6 for stay of execution
The application failed the requirements: no security was furnished and substantial loss was not demonstrated
The court found the applicant offered no security for due performance of the decree and merely alleged mental anguish and eviction hardship without demonstrating how that translated into substantial loss. Since the three conditions under Order 42 Rule 6 are conjunctive, failure to establish substantial loss and security meant the application could not succeed.
Whether the application was brought without unreasonable delay
A delay of over three years from the decree was inordinate and unexplained
The decree was extracted on 29/10/2019 but the application was filed on 15/11/2022, three years and one month later. Instead of seeking stay, the applicant sought to pay taxed costs in instalments, which signified agreement with the decree. Her conduct amounted to abuse of process and implied abandonment of her equitable privilege.
Relevance of the statutory provisions cited by the applicant
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 22 Rule 25 were irrelevant to a stay of execution application
The court analysed each provision cited and found none relevant: Section 63(e) concerns interlocutory orders where just and convenient, while Order 22 Rule 25 concerns stay where two suits by different persons exist against one party, which was not the case. The court cautioned counsel against citing provisions 'for the sake of it' and declined to search for applicable provisions on a party's behalf in an adversarial system.
Legal principles established
#- The conditions for stay of execution under Order 42 Rule 6 are conjunctive and must all be satisfied
- A court is not obliged to consider submissions and may determine a matter on evidence alone
- An applicant who prays for payment of costs by instalments signifies agreement with the decree and cannot later seek stay of the same decree; delay implies abandonment of equity's advantage
Court orders
#- 1.The Application dated 15/11/2021 is wholly unmeritorious and it is hereby dismissed
- 2.The Respondent is entitled to costs of the Application
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge v Hamisi & another (Environment & Land Case 83 of 2017) [2023] KEELC 282 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/282/eng@2023-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.