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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 1565 (KLR)

Gachanja Muhoro & Sons Limited t/a Dasy Mart Supermarket v Kamau & 2 others (Environment & Land Case 497 of 2016) [2024] KEELC 1565 (KLR)

Environment and Land Court
14 March 2024
AOA. OMOLLO
2,869 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Nairobi court paused enforcement of an Kshs 8.1 million judgment pending appeal, but only after half the money was deposited as security.

What this practically means

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Executive summary

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The Applicant, the Plaintiff whose suit was dismissed on 28th September 2023 with the 1st and 2nd Defendants' counterclaim for rent arrears of Kshs. 8,131,680 plus interest at 18% per annum allowed, moved the court by Notice of Motion dated 18th October 2023 seeking a stay of execution of that judgment and consequential orders pending appeal to the Court of Appeal. The Respondents opposed, arguing the Applicant failed to lodge the Notice of Appeal within seven days of judgment, provided no security, and would suffer no substantial loss since the decretal sum is rent long outstanding and they are able to refund it, being registered owners of plots at Utawala, Nairobi. The Applicant relied on Order 42 rule 6(2) and Court of Appeal Rule 77(2), contending the Notice of Appeal was lodged within fourteen days, that the motion was brought without delay, and that the Respondents hold the Applicant's assets worth over Kshs. 46 million, obviating further security. The court, per A. Omollo J, held the application was filed within a month of judgment and thus without undue delay; that the regularity of the Notice of Appeal is not for this court to determine, the appeal being deemed filed once notice is given under Order 42 rule 6(4); and that the Applicant demonstrated substantial loss. Balancing the competing interests guided by Nduhiu Gitahi v Warugongo and Michael Ntouthi Mitheu v Abraham Kivondo Musau, the court granted a conditional stay: the Applicant to deposit 50% of the decretal sum in an interest-earning account in the joint names of the parties' advocates within 60 days, failing which the stay lapses automatically; costs of the application to abide the winner of the appeal. The relief of an unconditional stay was thereby refused, the application being allowed only on conditions.

Key legal issues

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01

Whether the application was made without unreasonable delay

Holding

The application filed within a month of the judgment was made without undue delay

Reasoning

The judgment was delivered on 28th September 2023 and the motion dated 18th October 2023, so it was lodged within a month. The court accordingly found the first limb of Order 42 rule 6(2) satisfied on the delay requirement, and declined to adjudicate the Respondents' objection that the Notice of Appeal was irregularly lodged out of time.

p. 4
02

Whether the Applicant will suffer substantial loss unless stay is granted

Holding

The court found substantial loss on the facts and granted a conditional stay balancing the parties' competing interests

Reasoning

Relying on James Wangalwa and Michael Ntouthi Mitheu, the court held that execution alone is not substantial loss, but where the Applicant fears the Respondents may be unable to refund the decretal sum if the appeal succeeds, and the Respondents hold the Applicant's assets, the court should hold the ring even-handedly by ordering security in the least disadvantageous form — hence a 50% deposit into a joint interest-earning account.

p. 5

Legal principles established

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  • Stay of execution pending appeal requires substantial loss, absence of unreasonable delay, and security as the court orders
  • Once a Notice of Appeal is lodged, the appeal is deemed filed and the High Court will not inquire into its regularity when considering stay

Court orders

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  1. 1.A stay of execution of the judgement rendered on 28th September 2023 and all consequential orders thereto pending the hearing and determination of the Appeal filed at the Court of Appeal, on condition that the Applicant shall within 60 days from the date thereof deposit 50% of the decretal sum in an interest earning account to be opened in the names of the advocates for the parties on record
  2. 2.In default of the condition, the stay orders shall automatically lapse
  3. 3.The costs of the Application to abide the winner in the appeal
Jurisdiction invoked
Order 42 rule 6 of the 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, "Gachanja Muhoro & Sons Limited t/a Dasy Mart Supermarket v Kamau & 2 others (Environment & Land Case 497 of 2016) [2024] KEELC 1565 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1565/eng@2024-03-14

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