Murithi v Times U Sacco Ltd & another (Environment and Land Appeal E043 of 2023) [2024] KEELC 1265 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the requirements for a stay of execution pending appeal were met
The applicant failed to demonstrate substantial loss, as the decree was a negative order dismissing her suit and there was no positive order against her to stay
The lower court dismissed the appellant's suit and merely directed a fresh valuation before realization of the security; no positive order was made against the appellant. The appellant did not plead particulars of her investments or the loss she would suffer, and no costs had been assessed and executed against her. Execution is a lawful process and does not per se amount to substantial loss.
Whether a temporary injunction pending appeal should issue
The appellant failed to demonstrate an arguable appeal or that the appeal would be rendered nugatory
The appellant's affidavit and memorandum of appeal raised only general matters and did not show how the trial court misdirected itself or misused its discretion in refusing the permanent injunction. She admitted the outstanding debt and offered no repayment proposal. The claim that the land was matrimonial property was raised in submissions but not pleaded or supported by affidavit evidence.
Whether submissions could substitute for affidavit evidence
No - facts must be pleaded through an affidavit
The appellant relied heavily on written submissions asserting the property was matrimonial and that she had repaid part of the loan, but these facts were not deponed to in the supporting affidavit. Submissions, however powerful, cannot replace affidavit evidence on which the court may act.
Legal principles established
#- A negative order, such as the dismissal of a suit, is incapable of being stayed because there is nothing to stay or enforce
- Substantial loss must be proved with cogent and tangible evidence since execution per se does not amount to substantial loss
- A statutory power of sale is not a court order capable of execution but a right that crystallizes upon default
- Written submissions are not evidence and cannot replace affidavit evidence
Court orders
#- 1.The notice of motion seeking stay of execution and a temporary injunction pending appeal was dismissed with costs
- On appeal from
- Githongo Law Courts (Magistrates' Court)
- Not stated in the judgment
- Jurisdiction invoked
- Appellate jurisdiction over the lower court suit, with the application brought under Order 42 Rule 6 of the Civil Procedure Rules; Section 1A, 1B, 3A & 3 of the Civil Procedure Act and Article 159 of the Constitution cited as guiding the overriding objective
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murithi v Times U Sacco Ltd & another (Environment and Land Appeal E043 of 2023) [2024] KEELC 1265 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1265/eng@2024-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.