Nduti v Rafiki Microfinance Bank Limited (Environment and Land Appeal E027 of 2021) [2023] KEELC 747 (KLR)
The bottom line
#A Kenyan landowner lost her bid to halt the auction of her charged land because she never offered security, which courts treat as mandatory for a stay.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The court found substantial loss may result if stay is not made, given the graves of the appellant's parents on the land, but noted she took the risk of sale deliberately by charging the land
The court accepted the possibility of substantial loss but observed that the appellant knowingly used the land as loan security, accepting the risk of sale upon default. However, substantial loss alone is insufficient; it must be coupled with an offer of security under Order 42 rule 6(2).
Security for due performance of the decree
The appellant failed to offer any security; her vague assertion that the respondent already holds sufficient security and willingness to abide by conditions was unconvincing
The appellant's deposition that the respondent holds sufficient security while she remains 'willing to abide by any conditions' was interrogated and found wanting: she never offered her alleged alternative land, valued it, or explained her failure to sell it to save the charged land. Security is a prerequisite for stay.
Unreasonable delay
Not considered because the delay requirement is subsumed in rule 6(2)(a), which was found in the applicant's favour
The court declined to determine delay as a standalone issue, holding that the requirement is covered within rule 6(2)(a), on which the applicant had succeeded. The dispositive failure was on the security limb.
Legal principles established
#- Under Order 42 rule 6(2) of the Civil Procedure Rules, both conditions for stay - substantial loss and security for the due performance of the decree - must be present together, not separately
Court orders
#- 1.The notice of motion dated March 17, 2022 seeking stay of execution of the judgment and decree dated August 28, 2021 is dismissed with costs to the respondents
- On appeal from
- Kajiado Magistrates' Court (CMELC)
- Kajiado CMELC No 112 of 2018
- Jurisdiction invoked
- Articles 48 and 159(2)(d) of the Constitution; sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nduti v Rafiki Microfinance Bank Limited (Environment and Land Appeal E027 of 2021) [2023] KEELC 747 (KLR)", Case Analysis (2023). Kajiado CMELC No 112 of 2018 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/747/eng@2023-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.