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ELCDismissedCivil Appeal 17 of 2023· [2023] KEELC 20063 (KLR)

Mulima & 3 others v Kipkorir & another

Environment and Land Court
22 September 2023
AOA O Ombwayo
927 words in judgment
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The bottom line

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A Kenyan court refused to waive a Kshs 300,000 security deposit required for a stay of execution, calling the repeat application an abuse of process.

What this practically means

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Executive summary

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The four appellants, having lost in Nakuru CMELC No. 16 of 2019 and been granted a stay of execution pending appeal by the lower court on July 5, 2023 on condition that they deposit Kshs 300,000 as security for due performance of the decree, moved the Environment and Land Court at Nakuru by notice of motion dated July 6, 2023 seeking a further stay of execution of the judgment, decree and order of May 19, 2023 pending the hearing and determination of Nakuru ELC Appeal No. 17 of 2023, and in effect a waiver of the security condition on the ground that they could not afford the sum. The respondents opposed through a replying affidavit, arguing that a valid stay already existed, that a similar application had been made in the lower court, and that the appellants' remedy lay in pursuing the appeal. No submissions were filed. Ombwayo J framed a single issue: whether the application was merited. The court held that the application sought orders identical to those already granted and was therefore an abuse of court process; Order 42 Rule 6(2)(b) of the Civil Procedure Rules bars any stay unless security ordered by the court is given; and the appellants, having earlier undertaken to deposit reasonable security, could not resile from that position by pleading poverty, which the court termed an afterthought. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the application for stay of execution pending appeal was merited

Holding

The application lacked merit because a stay on identical terms had already been granted by the lower court, conditioned on a deposit of Kshs 300,000, and the appellants' claim of inability to pay was an afterthought.

Reasoning

The court found it undisputed that the lower court granted stay pending appeal on July 5, 2023 conditional on depositing Kshs 300,000 as security. The present application sought the same orders. Order 42 Rule 6(2)(b) requires security as a precondition to stay. The appellants had earlier undertaken to deposit reasonable security, so their new plea of financial incapacity was an afterthought and the application an abuse of process.

p. 3

Legal principles established

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  • No stay of execution shall be granted unless security for due performance ordered by the court is given by the appellant
  • A party who obtained a conditional stay cannot return to court to seek waiver of the same condition; such a repeat application is an abuse of process

Court orders

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  1. 1.The appellants' notice of motion dated July 6, 2023 is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 (2) (b)
On appeal from
Chief Magistrate's Court (Nakuru CMELC No. 16 of 2019)
Nakuru CMELC No. 16 of 2019
Jurisdiction invoked
Appellate jurisdiction under the Civil Procedure Rules (Order 42 Rule 6) over an appeal from the magistrates' court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mulima & 3 others v Kipkorir & another", Case Analysis (2023). Civil Appeal 17 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20063/eng@2023-09-22

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