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Case Brief · caselaw.co.ke
ELCDismissedEnvironment and Land Appeal 25 of 2023· [2023] KEELC 20509 (KLR)

Murithi v Wakhu & another

Environment and Land Court
4 October 2023
1,300 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Meru (CK Nzili, J) on an application dated May 16, 2023 by Harun Muchai Murithi, the applicant, seeking stay of execution of a lower court judgment and decree dated March 10, 2023, which is the subject of an appeal before the court. The applicant deposed that substantial loss would be occasioned if stay was not granted, that his appeal had a high chance of success, and that it was in the interest of justice to grant the orders. The respondents, Joab Indeche Wakhu and Phyllis Nyoroka Mbijiwe, opposed, arguing that no loss or damage was demonstrated, that the applicant wished to remain on the land deriving income of about Kshs.250,000/= monthly, that no security was offered for the Kshs.12,000,000/= decree, and that accumulated and future rent should be deposited in court as a condition precedent. They also noted the application was filed 36 days after the initial stay lapsed. The court, guided by Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution, identified the conditions for stay: absence of inordinate delay, demonstration of substantial loss, offer of security, and the interest of justice. It found the delay of over a month unexplained, substantial loss merely alleged and not demonstrated, no security offered, and no shown capacity to satisfy the decree. The application was dismissed with costs to the respondents.

Key legal issues

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01

Inordinate and unexplained delay in filing the stay application

Holding

Delay of over a month after the judgment, with the initial stay lapsed, was inordinate and unexplained

Reasoning

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.

p. 2
02

Demonstration of substantial loss

Holding

Mere allegation of substantial loss without demonstration does not satisfy the requirement

Reasoning

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.

p. 2
03

Security for due realization of the decree

Holding

No security was offered despite a money decree of Kshs.12,000,000/= and doubts about the applicant's capacity to pay

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated May 16, 2023 seeking stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure ActSections 1A and 1B
  • Constitution of KenyaArticle 159

Cases cited (12)

  • Kinyanjui Muguta vs. Wotuku Muguta
    (2018) eKLR

    Substantial loss must be substantiated, not merely alleged

  • Charles Mbaabu vs. Daniel M'Mwirebua Anampiu
    (2022) eKLR

    Lack of demonstration of substantial loss

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & others
    (2013) eKLR

    Need to attach memorandum of appeal to gauge arguability of intended appeal

  • Mwaura Kaaruga t/a Limit Enterprises vs. Kenya Bus Services Ltd and 4 others
    (2015) eKLR

    Security and means of satisfying the decree should the appeal fail

  • Samvir Trustee Ltd vs Guardian Bank Ltd
    (2007) eKLR

    Considerations in an application for stay of execution

  • James Wangalwa & another vs Agnes Naliaka Cheseto
    (2012) eKLR

    Considerations in an application for stay of execution

  • Seventh Day Adventist Ltd vs Muslim Mosque Committee and others
    (2022) KECA 100 (KLB)

    Considerations in an application for stay of execution

  • Kenya Shell Ltd vs Kibra
    (1986) KLR 410

    A successful litigant should not be deprived of the fruits of judgment without just cause

  • Giafranco Manethi & another vs. AMACO Ltd
    (2019) eKLR

    Conditions of payment of security where there is a money decree

  • Arun C. Sharma vs. Ashana Rainkundalia t/a Raikundalia & Co. Advocates and others
    (2014) eKLR

    Purpose of security is to guarantee due performance of the decree, not to punish

  • Port Reizt Maternity vs James Karanga Kabia
    C.A No. 63 of 1991

    Right of appeal must be balanced against the right to enjoy fruits of judgment

  • Paul Robo vs Kingori

    Cited with approval alongside Samvir Trustee on stay considerations

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

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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, "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.