Roh v Bhachu; Sang (Interested Party) (Environment and Land Appeal 5 of 2019) [2023] KEELC 812 (KLR)
The bottom line
#A Kenyan landowner lost his bid to pause execution of a judgment because he waited six months and showed no real loss if the land changed hands.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The Applicant failed to establish substantial loss; he did not show the suit land would be disposed of, and he could recover possession if his appeal succeeded.
The court balanced the applicant's interest in preserving the status quo against the respondent's right to enjoy the fruits of judgment. Following Charles Wahome Gethi v Angela Wairimu Gethi, substantial loss arises where the suit land would be disposed of before appeal is determined. The applicant claimed only possible eviction, offered no evidence of intended sale, and could retake possession if successful.
Reasonable delay
The application filed six months after judgment was inordinately delayed and the explanation (counsel's illness) was unsupported by documentary evidence.
Order 42 Rule 6(2)(a) requires the application be made without unreasonable delay. Judgment was delivered on 30th July 2020 and the application filed on 10th February 2021, a six-month gap. Counsel's illness was asserted without any supporting documentation annexed, so the delay remained unexplained and inordinate.
Security
The security condition was satisfied as the Applicant had already furnished Kshs 150,000/-.
Order 42 Rule 6(2)(b) requires security for due performance of the decree. The applicant had deposited Kshs 150,000/- upon launching the appeal, receipt annexed. The court found this condition fulfilled, but the failure of the other two conditions was fatal to the application.
Legal principles established
#- The purpose of a stay of execution pending appeal is to preserve the subject matter in dispute so that a successful appeal is not rendered nugatory.
- A party who fails to file submissions as ordered is deemed to have failed to oppose the application, which is then treated as unopposed and considered on its merit.
- A court ought not make a practice of denying a successful litigant the fruits of their judgment; an applicant must show sufficient cause, including what substantial loss they would suffer.
Court orders
#- 1.The Application dated 10th February 2021 is dismissed with costs.
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Roh v Bhachu; Sang (Interested Party) (Environment and Land Appeal 5 of 2019) [2023] KEELC 812 (KLR)", Case Analysis (2023). Notice of Motion dated 10th February 2021 (arising from judgment and decree of 30th July 2020; intended appeal in Nakuru Civil Appeal No. E13 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/812/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.