Mwaura & another v Naserian (Sued as the legal representatives of the Estate of the Late Josephine Asiagi Kasembe) (Environment and Land Appeal E35 of 2023) [2024] KEELC 636 (KLR)
The bottom line
#A Kenyan High Court stayed an eviction judgment but told the appellants that being evicted as a trespasser is not 'substantial loss' for stay purposes.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was filed without unreasonable delay
The application was filed timeously, judgment having been delivered on 27th October 2023 and the application filed on 21st November 2023
The court compared the date of delivery of the impugned judgment with the date of filing of the motion and concluded the interval was not inordinate. The first limb of Order 42 Rule 6(2)(a) was therefore satisfied without further analysis.
Whether the Appellants demonstrated substantial loss
Mere eviction of a person judicially declared a trespasser does not amount to substantial loss; substantial loss is assessed on the circumstances of each case
The court acknowledged the appellants' livelihood argument regarding demolition of kiosks, and noted the respondent's demand for valuation reports. Relying on Noor Said v Mary Mwawasi Manga, it held that eviction of a declared trespasser ordinarily cannot suffice as proof of substantial loss, since eviction was the very relief the respondent sought at trial. The court balanced the successful litigant's right to enjoy the fruits of judgment against the appellant's right of appeal.
Whether security for the due performance of the decree should be given, and in what amount
Security is discretionary and meant not to be punitive but to cushion the successful litigant; the court ordered deposit of Kshs. 200,000 in a joint interest-earning account within 30 days
Relying on Gianfranco Manenthi & another v Africa Merchant Assurance Company Ltd, the court held that the winner of litigation should not be denied the opportunity to execute the decree, and that the security condition under Order 42 Rule 6 is trite. The court considered the respondent's submission that only a limited grant ad litem existed and fixed a reduced, reasonable security of Kshs. 200,000, failing which the stay lapses, and directed prosecution of the appeal within 90 days.
Legal principles established
#- Eviction of a person declared a trespasser does not by itself constitute substantial loss for purposes of stay of execution
- The requirements under Order 42 Rule 6 are filing without unreasonable delay, demonstration of substantial loss, and provision of security for due performance of the decree
Court orders
#- 1.Stay of execution of the judgment and orders of Hon. K. I. Orenge (PM) in Nakuru CM ELC 1003 of 2013 dated 27th October 2023 pending determination of the appeal, on condition that the Appellants deposit Kshs. 200,000 in a joint interest-earning account of the advocates on record within 30 days, failing which the order lapses
- 2.The appeal to be prosecuted within 90 days from the date of the ruling
- On appeal from
- Chief Magistrate's Court, Nakuru
- Nakuru CM ELC 1003 of 2013
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaura & another v Naserian (Sued as the legal representatives of the Estate of the Late Josephine Asiagi Kasembe) (Environment and Land Appeal E35 of 2023) [2024] KEELC 636 (KLR)", Case Analysis (2024). Nakuru CM ELC 1003 of 2013 (appeal therefrom; Notice of Motion dated 20th November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/636/eng@2024-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.