Kango Enterprises Limited & another v Unsworth (Sued as the administrator the Estate of John Fraser Unsworth) & 7 others
The bottom line
#A Kenyan court refused to pause a land judgment because the losing party offered no real proof of loss and the property had already been transferred.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was filed without unreasonable delay
Filed without undue delay
Judgment was delivered on 5th August 2022 and the application filed on 7th September 2022. The court held that what amounts to unreasonable delay is determined case by case, there being no precise measure of inordinate delay, and found the filing timeous.
Whether the Applicant demonstrated substantial loss
No substantial loss established
The Applicant argued the 45 days to vacate was insufficient to remove her belongings and improvements, risking homelessness. Relying on Charles Wahome Gethi and Samvir Trustee, the court held that mere residence and assertions are insufficient; empirical evidence of substantial loss was required and none was adduced.
Whether sufficient cause was shown
No sufficient cause shown
The Applicant argued the appeal was arguable, but per Judson Oriema Okoth, arguability is a matter for the Court of Appeal, not the trial judge on stay. The Applicant's real complaint was insufficient time to vacate, which she could have negotiated with the decree holder.
Whether adequate security was offered
Suit property cannot serve as security
The Applicant offered the suit property, registered in her husband's name, as security. The court held she cannot offer property the court has adjudged belongs to the Plaintiff, and per Arun C Sharma, security must guarantee due performance of the decree.
Whether the application was overtaken by events
Yes; nothing left to stay
The Plaintiff deponed that the register had already been rectified inserting the Plaintiff as registered proprietor, so the judgment had been effected and any stay orders would be in vain.
Legal principles established
#- Stay of execution under Order 42 rule 6 requires substantial loss, absence of unreasonable delay and security for due performance of the decree
- Mere assertions of substantial loss are insufficient; empirical or documentary evidence is required
- Arguability of an intended appeal is not synonymous with sufficient cause for stay
- A party cannot offer as security property the court has adjudged to belong to the decree holder
Court orders
#- 1.The Notice of Motion dated 29th August 2022 seeking stay of execution and injunction pending appeal is dismissed
- 2.Costs of the application awarded to the Plaintiff
- Jurisdiction invoked
- Order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kango Enterprises Limited & another v Unsworth (Sued as the administrator the Estate of John Fraser Unsworth) & 7 others", Case Analysis (2023). Environment & Land Case 41 of 2012 & E11 of 2020 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18355/eng@2023-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.