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ELCDismissedEnvironment and Land Appeal E005 of 2023· [2023] KEELC 21514 (KLR)

Ndubi v Gituma (Sued as the Legal Representative of the Estate of Jeneny Mwihaki Gituma - Deceased)

Environment and Land Court
8 November 2023
1,734 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Meru refused to pause a Kshs.1.24 million money judgment because the appellant offered no real proof of loss or security.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Meru (CK Nzili, J) on a Notice of Motion dated July 12, 2022 in which the appellant, Timothy Kinyua Ndubi, sought a stay of execution of a decree of the lower court delivered on June 21, 2023, pending the hearing and determination of his appeal. The decree required him to refund Kshs.170,000 plus liquidated damages of Kshs.900,000 arising from an aborted sale agreement over land, with the respondent asserting the decretal sum stood at Kshs.1,241,125 inclusive of costs. The appellant argued the appeal was arguable, that he had applied without delay, that he was in occupation of the suit land which risked being sold in execution rendering him homeless, and offered his title deed as security. The respondent opposed, contending the application was a delaying tactic, lacked particulars of substantial loss, and that no valuation of the proposed security was provided. The court restated the established conditions for stay under Order 42 rule 6: application without inordinate delay, substantial loss, security, and the interest of justice. Applying binding precedent, it found the decree was a money decree, not one over the land; the applicant did not attach the title deed, disclose the value of his developments, or show the land was under execution. No reasonable security or exceptional circumstances were demonstrated. The application was dismissed with costs.

Key legal issues

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01

Substantial loss in a money decree

Holding

The applicant failed to demonstrate substantial loss; the decree was for money, not the land, and no execution process against the land was shown

Reasoning

The court held that the decree was a liquidated money decree and the applicant did not show that the only means of execution was auction of his land. He did not attach the title deed, disclose the value of developments, or show the land had been attached. Occupation alone is not enough per Gethi vs Gethi.

p. 3
02

Security for the due realization of the decree

Holding

No reasonable security was offered; the applicant did not offer to deposit a proportion of the decretal amount and the status and value of the proposed title-deed security were undisclosed

Reasoning

The applicant offered the suit land title as security but did not attach the title deed or provide a valuation report. He did not offer to deposit a reasonable proportion of the decretal amount. The court found the security proposal inadequate and the applicant's position one of wanting it both ways.

03

Interest of justice and exceptional circumstances

Holding

No exceptional circumstances were demonstrated to justify keeping the decree-holder from the fruits of his judgment eight years after payment

Reasoning

Applying Samvir Trustee and Kenya Shell, the court required tangible, empirical or documentary evidence of substantial loss and justification for believing the respondent could not refund. None was offered; the balance of justice favoured the decree-holder who paid Kshs.170,000 eight years earlier for an aborted sale.

p. 3

Legal principles established

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  • A party seeking stay of execution must apply without inordinate delay, demonstrate substantial loss, offer security, and establish that it is in the interest of justice to grant the orders
  • In a money decree, a judgment debtor must show bona fide sources of income and undue hardship; mere occupation of land is insufficient

Court orders

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  1. 1.The Notice of Motion dated July 12, 2022 seeking stay of execution of the lower court decree is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure ActSections 1A and 1B

Cases cited (13)

  • RWW vs EKW
    (2019) eKLR

    Conditions for stay of execution

  • Focin Motorcycle Co Ltd vs Ann Wambui Wangui & another
    (2018) eKLR

    Stay of execution principles

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

    Execution is a legal process; party must show how execution negates the core of the appeal

  • Gethi vs Gethi
    (2008) eKLR

    Occupation of suit land alone insufficient to stop decree-holder

  • NIC Bank Ltd & others vs Mombasa Water Products Ltd
    (2021) eKLR

    Arguable appeal need not succeed but must not be frivolous

  • Stanley Kangethe Kinyanjui vs Tony Keter and 5 others
    (2013) eKLR

    Meaning of nugatory

  • Housing Finance Corporation of Kenya Ltd vs Sharok Kher Mohamend Ali Hirji and another
    (2015) eKLR

    Undue hardship as a factor in stay of money decrees

  • Michael Ntoiti Mitheu vs Abraham Kivondo Musau
    (2021) eKLR

    Court's discretion and overriding objective in stay applications

  • Vishram Ravji Halai vs Thorton & Turpin
    (1990) KLR 365

    Unfettered discretion to grant stay; overriding objective

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

    Exceptional circumstances and tangible evidence of substantial loss required

  • Kenya Shell Ltd vs Kabiru Karuga
    (1986) KLR 410

    Evidence required to keep respondent out of their money

  • Caneland Ltd & others vs Delphis Bank Ltd
    C. A No. Nai 344 of 1999

    Burden on applicant to prove respondent cannot refund

  • Nduhiu Gitahi vs Warugongo
    (1988) KLR 621

    Forms of adequate security

Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules; sections 1A and 1B of the Civil Procedure Act

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, "Ndubi v Gituma (Sued as the Legal Representative of the Estate of Jeneny Mwihaki Gituma - Deceased)", Case Analysis (2023). Environment and Land Appeal E005 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21514/eng@2023-11-08

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