Waningilo v Baraza & another
The bottom line
#A Kenyan landowner lost his bid to pause execution of a judgment because he misled the court on oath and offered no credible security.
What this practically means
#Executive summary
#Key legal issues
#Correct statutory basis for stay of execution pending appeal
Where a Notice of Appeal has been filed, the applicable provision is Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, not Order 10 Rule 11 or Order 22 Rule 22
The applicant had filed a Notice of Appeal and applied for proceedings, taking steps under Order 42 Rule 6(4) and Rule 82(1) and (2) of the Court of Appeal Rules. The court therefore held that Order 42 Rule 6(1) and (2) governed, and that the other provisions cited were inapplicable to a stay pending appeal from the court's own judgment.
Whether the application was brought without undue delay
The delay of about two weeks from lodging the appeal was unexplained but not undue or inordinate
Judgment was delivered on 11/08/2022, the Notice of Appeal filed on 18/08/2022, and the application brought 17 days later. Although the two-week delay from lodging the appeal was unexplained, the court was prepared to find it not undue or inordinate, satisfying the second condition under Order 42 Rule 6(2).
Whether the applicant demonstrated substantial loss
The applicant failed to demonstrate substantial loss; his sworn claims of occupation and development were disproved by his own trial evidence that he leased the land to others
The court examined the plaintiff's own evidence in chief and cross-examination, in which he admitted leasing the land to named persons to farm. The court found he was not in actual occupation, had not built on the land, and had lied on oath. His dishonesty additionally barred him from equitable discretion under the clean hands doctrine.
Whether the applicant offered security for due performance of the decree
The proposed security of Kshs. 100,000/- was unsupported as it emerged only in submissions, which are not evidence
The offer of security appeared only in the applicant's submissions, not in the affidavit or pleadings. Relying on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, the court held submissions are mere marketing language, not evidence, so the security condition was not satisfied.
Legal principles established
#- Where rules of procedure prescribe the provision for taking a step in proceedings, the correct provision must be cited; citing others is irrelevant
- A party who misleads the court on oath disqualifies itself from equitable discretion
- Submissions are not evidence or pleadings and cannot support factual propositions
Court orders
#- 1.Application dated 05/09/2022 dismissed with costs to the Respondents
- Jurisdiction invoked
- Sections 3 and 3A of the Civil Procedure Act; Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waningilo v Baraza & another", Case Analysis (2023). Environment & Land Case 2 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17082/eng@2023-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.