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ELCDismissedCivil Appeal 1 of 2021· [2023] KEELC 15715 (KLR)

Kabugua v Mwatata & another

Environment and Land Court at Malindi
20 February 2023
MOM. A. Odeny
1,857 words in judgment
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The bottom line

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A Kenyan land court refused to pause enforcement of a judgment because the applicant claimed she would suffer loss but offered no proof of it.

What this practically means

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Executive summary

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This is a ruling by M.A. Odeny, J of the Environment and Land Court at Malindi on a notice of motion dated 21st April 2022 in which Lelah Boma, the 2nd Respondent in the main appeal (described as Applicant), sought a stay of execution of the judgment delivered by Odeny, J on 22nd March 2022, pending the hearing and determination of her second appeal in the Court of Appeal. She argued that the order for vacant possession would cause irreparable loss, unjustly enriching the Appellant who had bought a 7-roomed house but was decreed a 13-roomed house, and that the appeal raised serious issues of law. The Appellant John Munene Kabugua opposed, contending the draft memorandum raised only factual matters unsuitable for a second appeal, that the balance of convenience favoured him, and that the application merely sought to deny him the fruits of his judgment. The court framed a single issue: whether the Applicant met the Order 42 rule 6 threshold. Applying Consolidated Marine v Nampija, Butt v Rent Restriction Tribunal, Kenya Shell v Kibiru and Charles Wahome Gethi, the court held that substantial loss is the cornerstone of a stay application and must be proved, not merely asserted. Finding that the Applicant had not established substantial loss or satisfied the rule 6 conditions, the court dismissed the application with costs to the Respondent on 20th February 2023.

Key legal issues

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01

Whether the threshold in Order 42 rule 6 for stay of execution pending appeal was met

Holding

Not met; the application was dismissed with costs

Reasoning

The court restated the Order 42 rule 6(2) conditions: substantial loss, application without unreasonable delay, and security. Drawing on Kenya Shell v Kibiru and Charles Wahome Gethi, it held that substantial loss is the cornerstone and must be proved, not merely alleged. The Applicant did not demonstrate substantial loss, so stay could not issue despite the arguable-appeal requirement.

p. 4
02

Purpose of stay of execution

Holding

To preserve the substratum of the case so a successful appeal is not rendered nugatory

Reasoning

Relying on Consolidated Marine v Nampija and Butt v Rent Restriction Tribunal, the court framed stay as a discretionary but judiciously exercised power aimed at preserving the subject matter and safeguarding the appellant's undoubted right of appeal, guided by the special circumstances of each case.

p. 3

Legal principles established

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  • Proof of substantial loss is the cornerstone of an application for stay of execution; an applicant must prove the loss, not merely assert it
  • Where substantial loss is not established, stay orders need not be granted

Court orders

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  1. 1.Application dated 21st April 2022 dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 42 Rules 1, 2 and 4
  • Civil Procedure ActSection 72(1)
  • Civil Procedure RulesOrder 21 [1]

Cases cited (8)

  • RWW v EKW
    (2019) eKLR

    Substantial loss requirement for stay of execution

  • Peter Njuguna Njoroge vs Zipporah Wangui Njuguna
    (2013) eKLR

    Conditions for stay: arguable appeal, nugatory appeal, substantial loss, security, timeliness

  • Charles Kipkoech Leting vs Express (K) Ltd & Another
    (2018) eKLR

    Second appeals confined to matters of law only

  • Anne Njeri Mwangi vs Muzaffer Musafee Essajee & another
    (2014) eKLR

    Balance of convenience and enjoyment of fruits of judgment

  • Consolidated Marine vs Nampija & Another
    Civil App. No. 93 of 1989 (Nairobi)

    Purpose of stay is to preserve the subject matter so the appeal is not rendered nugatory

  • Butt v Rent Restriction Tribunal
    (1982) KLR 417

    Guidance on exercise of discretion in stay applications

  • Kenya Shell Limited vs Kibiru
    [1986] KLR 410

    Substantial loss is the cornerstone of jurisdiction to grant stay

  • Charles Wahome Gethi vs Angela Wairimu Gethi
    [2008] eKLR

    Applicants must show the substantial loss they stand to suffer, not merely assert it

Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kabugua v Mwatata & another", Case Analysis (2023). Civil Appeal 1 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15715/eng@2023-02-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.