Kamwara v Kagembe (Enviromental and Land Originating Summons E001 of 2021) [2024] KEELC 3764 (KLR)
The bottom line
#The High Court at Chuka dismissed a request to pause execution of a costs order because the applicant never proved he would suffer substantial loss if the judgment was enforced.
What this practically means
#Executive summary
#Key legal issues
#Whether substantial loss had been demonstrated to justify a stay of execution pending appeal
The application failed because the applicant did not establish what substantial loss he would suffer nor that the appeal would be rendered nugatory
The impugned ruling had declined to review an order on costs awarded in the judgment of 9th November, 2022. The applicant neither claimed nor demonstrated that the respondent would be unable to repay the costs if the appeal succeeded. Since proving substantial loss is the applicant's burden, and nothing was shown, the court was not persuaded the appeal would be rendered nugatory and dismissed the motion with costs.
Which legal regime governs a stay application before the High Court pending an intended appeal to the Court of Appeal
Order 42 Rule 6 of the Civil Procedure Rules governs; Rule 5(2)(b) of the Court of Appeal Rules, 2022 applies only to the Court of Appeal itself
The applicant relied on Rule 5(2)(b) of the Court of Appeal Rules, 2022, but the court held that provision donates jurisdiction to the Court of Appeal, not the High Court. The High Court's power to stay execution of its own decree pending appeal is found in Order 42 Rule 6(1) of the Civil Procedure Rules, whose conditions are substantial loss, absence of unreasonable delay, and security for due performance.
Legal principles established
#- Rule 5(2)(b) of the Court of Appeal Rules, 2022 confers stay jurisdiction on the Court of Appeal only, not on the High Court, which is governed by Order 42 Rule 6 of the Civil Procedure Rules
- Whether an intended appeal is arguable is a matter for the Court of Appeal, not the High Court entertaining a stay application
- The burden of proving substantial loss lies on the applicant for stay of execution
Court orders
#- 1.The application dated 29th September, 2023 is dismissed with costs to the respondent
- Jurisdiction invoked
- Order 42 Rule 6(1) of the Civil Procedure Rules, the court holding that Rule 5(2)(b) of the Court of Appeal Rules, 2022 applies only to the Court of Appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamwara v Kagembe (Enviromental and Land Originating Summons E001 of 2021) [2024] KEELC 3764 (KLR)", Case Analysis (2024). Notice of Motion dated 29th September, 2023 (ruling of 26th July, 2023 in suit with judgment delivered 9th November, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3764/eng@2024-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.