Murithi v Wakhu & another
The bottom line
#A Kenyan court refused to pause execution of a Kshs.12 million judgment because the applicant delayed, proved no loss, and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Inordinate and unexplained delay in filing the stay application
Delay of over a month after the judgment, with the initial stay lapsed, was inordinate and unexplained
The judgment was delivered on 10.3.2023 and the application filed on May 18, 2023, some 36 days after the initial stay lapsed. The court held that even a delay of one day can be inordinate depending on circumstances, and the applicant gave no reasons for the delay nor indicated the status of the substratum of the appeal.
Demonstration of substantial loss
Mere allegation of substantial loss without demonstration does not satisfy the requirement
The applicant did not indicate who was in occupation, what developments existed, or what loss he would incur if stay was denied. The respondents noted he continued earning Kshs.250,000/= monthly from the property. Following Kinyanjui Muguta and Charles Mbaabu, the court found substantial loss unsubstantiated.
Security for due realization of the decree
No security was offered despite a money decree of Kshs.12,000,000/= and doubts about the applicant's capacity to pay
Where there is a money decree, a debt is already owed; the applicant must meet the conditions of payment of security. Security is not mere willingness but a matter for the court to determine, and its purpose is to guarantee due performance of the decree, not to punish the applicant.
Legal principles established
#- A party seeking a stay of execution must apply without inordinate delay, demonstrate substantial loss, offer security for due realization of the decree, and show it is in the interest of justice
- It is not enough to allege substantial loss; it must be demonstrated
- A successful litigant should not be deprived of the fruits of judgment without just cause
Court orders
#- 1.The application dated May 16, 2023 seeking stay of execution is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- null (lower court not named in judgment)
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murithi v Wakhu & another", Case Analysis (2023). Environment and Land Appeal 25 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20509/eng@2023-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.