Hawo Abdi Mucheke & others v Respondent (stay of execution application)
The bottom line
#The Environment and Land Court in Maua dismissed a stay application because the applicants proved no real loss and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
Mere allegations of substantial loss without cogent and tangible evidence do not satisfy Order 42 rule 6
The applicants alleged the appeal would be rendered nugatory if eviction proceeded, but attached no decree, exhibited no notice to vacate, and gave no particulars of each applicant's occupation or likely loss. A mere admission of occupation by the respondent at trial is insufficient; the applicant must illustrate how execution would affect the substratum of the appeal.
Security for due satisfaction of the decree
The applicants made no proposal for security despite a monetary decree of Kshs 300,000, and the court cannot impose security on its own motion
Order 42 rule 6 requires an applicant for stay to offer security. Although the trial court awarded general damages plus costs and interest, the applicants proposed nothing. The court held it is not its role to craft security for a party; the applicant must satisfy all conditions to persuade the court to grant the orders.
Reasonable time
The application filed about one month after judgment was not inordinately delayed
Judgment was delivered on October 17, 2022 and the application filed on November 1, 2022. The court found the period of one month not inordinately long, and noted no evidence that the respondent had executed the decree or taken over the land, so the application was not overtaken by events. The application nonetheless failed on the other conditions.
Legal principles established
#- A party seeking stay must demonstrate substantial loss, file within reasonable time and offer security; it is not for the court to impose security
Court orders
#- 1.The application for stay of execution is dismissed with costs
- 2.The lower court file to be availed on priority basis
- On appeal from
- ELC (Maua ELC Case No 266 of 2018)
- 266 of 2018
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules; Sections 1A and 1B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hawo Abdi Mucheke & others v Respondent (stay of execution application)", Case Analysis (2023). Maua ELC Case No 266 of 2018 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/430/eng@2023-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.