Khamis & another v Khamisi & 4 others
The bottom line
#The Environment and Land Court in Malindi refused to pause enforcement of a land judgment, ruling that a two-year unexplained delay and refusal to deposit security outweighed the applicants' loss claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants satisfied the Order 42 Rule 6 conditions for stay pending appeal
The application failed on the delay and security limbs; the delay of about two years from judgment and one year from the ruling was unexplained, and the applicants refused to provide monetary security
The court reaffirmed the three-pronged test in Order 42 Rule 6 as restated in James Wangalwa v Agnes Nakiaka Cheseto: substantial loss, no unreasonable delay, and security. While substantial loss was arguably shown given the immovable property claims, the delay was inordinate and the explanation - former counsel's conduct - was the same reason Olola J had rejected when dismissing the application to set aside the ex parte judgment. The applicants also declined to deposit the decretal sum, offering only the title documents.
Whether stay could issue where the intended appeal and extension of time were still pending in the Court of Appeal
The court declined to speculate on the outcome of the extension-of-time application, noting there was no appeal yet in existence to anchor the stay
The applicants had lodged an application for extension of time (Civil Application No 4 of 2022) and an appeal (Appeal No 4 of 2022) in the Court of Appeal, but extension had not been granted. The court held it could not speculate on that outcome and treated the existence of a competent appeal as moot at this stage.
Legal principles established
#- Grant of stay pending appeal is discretionary and requires the applicant to establish substantial loss, absence of unreasonable delay, and provision of security
- Substantial loss alone is insufficient; delay must be satisfactorily explained before stay is granted
Court orders
#- 1.The application dated 27th June 2022 is dismissed with costs
- Jurisdiction invoked
- Order 22 Rule 22 and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khamis & another v Khamisi & 4 others", Case Analysis (2023). Environment & Land Case 33 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17403/eng@2023-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.