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ELCPartially AllowedMCELC Case No. E115 of 2022 (appeal therefrom; Motion dated 17/7/2023)· [2024] KEELC 1403 (KLR)

Githua v Muhia & another (Environment and Land Appeal E010 of 2023) [2024] KEELC 1403 (KLR)

Environment and Land Court
14 March 2024
2,139 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped auction of a tenant's goods pending appeal, but only because he agreed to deposit Kshs 200,000 as security within 30 days.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Thika (J G Kemei, Judge) determined a Motion dated 17/7/2023 by the Appellant/Applicant seeking stay of execution of the decree in MCELC Case No. E115 of 2022 (Ruiru Law Courts), James Karu Githua v Isaac Njoroge Muhia & Another, pending appeal. The applicant's suit had been dismissed on 22/6/2023; he deponed that he had rented Mugutha House in Ruiru from the 1st Respondent, carried out repairs of about Kshs 527,211/- with the landlord's blessing, and that the 2nd Respondent had proclaimed and attached household goods worth Kshs 600,000/-, exposing him to substantial loss if execution proceeded. The 1st Respondent opposed the motion as frivolous and an attempt to deny him the fruits of his judgment, offering in the alternative a conditional stay upon deposit of the decretal sum in court. The court framed a single issue - whether the application was merited - and applied the three-fold test under Order 42 rule 6: substantial loss, timely filing and security. Applying James Wangalwa, Machira, Michael Ntouthi Mitheu, Nduhiu Gitahi and Westmont Holdings, it found substantial loss demonstrated by the proclamation of goods, the one-month delay not inordinate, and fashioned conditional security. The application was allowed: the Applicant to deposit Kshs 200,000/- in a fixed interest earning account in the names of both Counsel within 30 days, failing which the stay lapses; costs were awarded to the Respondents.

Key legal issues

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01

Whether the Applicant demonstrated substantial loss

Holding

Yes - evidence of proclamation and attachment of household goods worth Kshs 600,000/- demonstrated a state of affairs that may be negated if he succeeds on appeal

Reasoning

The Applicant annexed the proclamation of goods issued by the 2nd Respondent in satisfaction of the trial judgment. Relying on James Wangalwa and Michael Ntouthi Mitheu, the court held that attachment already begun, coupled with the doubtful refundability of the decretal sum, showed execution would negate the core of the applicant's position pending appeal.

p. 4
02

Whether the application was filed without unreasonable delay

Holding

Yes - filed one month after judgment, which was not inordinate

Reasoning

Judgment was delivered on 22/6/2023 and the application filed on 22/7/2023. The court found the one-month period not inordinate in the circumstances, satisfying the timeliness limb of Order 42 rule 6(2)(a).

p. 4
03

What security, if any, should be furnished for the due performance of the decree

Holding

Conditional stay on a deposit of Kshs 200,000/- in a fixed interest earning account in the names of both Counsel within 30 days

Reasoning

The Applicant offered no security; the 1st Respondent proposed deposit of the decretal sum in a joint interest-earning account. Guided by Nduhiu Gitahi v Warugongo and Westmont Holdings, the court fashioned a conditional stay with a reasonable security condition that does not impede access to justice.

p. 5

Legal principles established

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  • Stay of execution pending appeal requires substantial loss, absence of unreasonable delay, and furnishing of security
  • Execution put in motion by itself does not amount to substantial loss; the applicant must show execution will irreparably negate the essential core of the applicant as successful party in the appeal
  • Security for stay may take any adequate form; the court must hold the ring even-handedly between the parties

Court orders

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  1. 1.Stay of execution of the decree in MCELC Case No. E115 of 2022 granted conditionally upon the deposit of Kshs 200,000/- in a fixed interest earning account in the names of both Counsel for the parties within 30 days, in default the orders shall lapse
  2. 2.Costs in favour of the Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrders 40, 42 rule 6, 51

Cases cited (5)

  • James Wangalwa & Another v. Agnes Naliaka Cheseto
    [2012] eKLR
  • Machira T/A Machira & Company Advocates v. East African Standard (No 2)
    [2002] 2 KLR
  • Michael Ntouthi Mitheu v. Abraham Kivondo Musau
    [2021] eKLR
  • Nduhiu Gitahi v. Warugongo
    [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100
  • Westmont Holdings SDN - BHD v Central Bank of Kenya
On appeal from
Ruiru Law Courts (Magistrates' Court)
MCELC Case No. E115 of 2022
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63(e) Civil Procedure Act and Orders 40, 42 and 51 Civil Procedure Rules

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, "Githua v Muhia & another (Environment and Land Appeal E010 of 2023) [2024] KEELC 1403 (KLR)", Case Analysis (2024). MCELC Case No. E115 of 2022 (appeal therefrom; Motion dated 17/7/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1403/eng@2024-03-14

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