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ELCAllowedEnvironment and Land Appeal 1 of 2023· [2023] KEELC 20628 (KLR)

Mwaluma v Kiwoi (Sued in her Own Capacity and in her Capacity as Personal Representative and Administrator of the Estate of Hannington Kiwoi)

Environment and Land Court
5 October 2023
LNL. L. Naikuni
5,614 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court paused enforcement of a Kshs. 408,575 costs award, letting the losing party appeal while the money sits safely in a joint escrow account.

What this practically means

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Executive summary

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The Appellant, Crispus Mwagogo Mwaluma, moved the Environment and Land Court at Mombasa (LL Naikuni, J) by Notice of Motion dated 24th March 2023 under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking stay of execution of the judgment of 4th December 2022 in Voi Magistrates Court ELC No. E39 of 2021 (by which his suit was dismissed with costs) and of the ruling on assessment of costs dated 22nd February 2023, in which Kshs. 408,575 was awarded, pending his appeal. He alleged the costs were excessive, that the Respondent had obtained a certificate of costs and threatened his arrest and committal to civil jail, and that he stood to suffer substantial loss. The Respondent countered that there was nothing to stay since the suit had been dismissed, that no proper appeal lay against the award of costs, and that her counsel could refund any decretal sum if the appeal succeeded. The court framed three issues: whether a case for stay was made, whether the parties were entitled to the reliefs, and costs. Applying Order 42 Rule 6(2) and the overriding objective, the court found substantial loss proved, no inordinate delay, and that security could be met by deposit into an interest-earning joint escrow account. The application was allowed in its entirety: stay of the judgment and of the costs assessment was granted, the decretal sum to be deposited within 21 days, a record of appeal to be filed within 30 days, and costs of the application were placed in the cause.

Key legal issues

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01

Substantial loss

Holding

Substantial loss was proved given the threat of committal to civil jail and the doubtful refundability of the decretal sum.

Reasoning

The court accepted that the Respondent had obtained a certificate of costs and threatened execution including committal to civil jail. Relying on the Respondent's own submission on the parties' financial positions, the judge found the possibility of refund doubtful and concluded substantial loss was proved.

p. 10
02

Unreasonable delay

Holding

There was no inordinate delay in bringing the application and appeal.

Reasoning

The judgment was entered on 4th December 2022 and the ruling on costs dated 22nd February 2023; the amended memorandum of appeal was filed 60 days later on 22nd March 2023, which the court found not inordinate.

03

Security

Holding

Security by deposit of the decretal sum into an interest-earning joint escrow account suffices.

Reasoning

The court held it could make appropriate orders serving the interest of justice, noting that money depreciates unless kept in an interest-earning account for the period of the appeal, and ordered deposit into a joint escrow account held by both firms of advocates.

p. 10

Legal principles established

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  • An applicant for stay of execution pending appeal must satisfy the conditions of substantial loss, no unreasonable delay and security under Order 42 Rule 6(2).
  • Execution of a lawful decree by itself does not amount to substantial loss.

Court orders

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  1. 1.Notice of Motion application dated 24th March, 2023 found to have merit and allowed in its entirety
  2. 2.Stay of execution of the Judgment and Orders made on the 4th December 2022 in Voi Magistrates Court ELC Number E 39 of 2021 pending the hearing and final determination of the application and the appeal
  3. 3.Stay of execution of the ruling of assessment of costs dated 22nd February, 2023 pending the hearing and final determination of the appeal
  4. 4.Appellant to deposit the entire decretal sum into an interest earning Joint Escrow bank account held by both law firms within 21 days
  5. 5.Appellant to file and serve a record of appeal within thirty (30) days; matter mentioned on 30th January, 2024 for compliance and further directions
  6. 6.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2)
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A and 27(1)
  • Constitution of Kenya, 2010Article 159(2)(c)
  • Advocates Remuneration Orderprescribed fees (referenced)
  • Civil Procedure Rules, 2010Order 42 Rules 11, 13 & 16

Cases cited (9)

  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR

    Execution in motion by itself does not amount to substantial loss; substantial loss is what has to be prevented by preserving the status quo.

  • RWW v EKW
    [2019] eKLR

    Purpose of stay of execution pending appeal is to preserve the subject matter and balance the parties' interests.

  • Nairobi Women's Hospital v Purity Kemunto
    [2018] eKLR

    An arguable appeal raises a bona fide issue deserving consideration; even one bona fide issue suffices.

  • Regnoil Kenya Limited v Winfred Njeri Karanja
    [2019] eKLR

    Same proposition on arguable appeal.

  • Consolidated Marine v Namprijad & Ano
    Civil Appeal No. 93 of 1989

    Purpose of stay application is to preserve the subject matter so the appeal is not rendered nugatory.

  • Samvir Trustee Limited v Guardian Bank Limited
    Nairobi (Milimani) HCCC 795 of 1997

    Substantial loss must be supported by empirical or documentary evidence, not mere assertions.

  • Antoine Ndiaye v African Virtual University
    [2015] eKLR

    Conditions for stay of execution under Order 42 Rule 6(2).

  • Michael Ntouthi Mitheu v Abraham Kivondo Musau
  • Khairrunissa Hussein Haji Ladha & Others v Suleiman Abdulrehman & Another
On appeal from
Voi Magistrates Court
ELC Number E 39 of 2021
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21 (appellate jurisdiction over subordinate 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, "Mwaluma v Kiwoi (Sued in her Own Capacity and in her Capacity as Personal Representative and Administrator of the Estate of Hannington Kiwoi)", Case Analysis (2023). Environment and Land Appeal 1 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20628/eng@2023-10-05

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