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ELCDismissedNot stated in judgment· [2024] KEELC 3935 (KLR)

Njoroge v Kinuthia & another (Environment & Land Case 101 of 2017) [2024] KEELC 3935 (KLR)

Environment and Land Court
15 May 2024
758 words in judgment
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The bottom line

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A Nakuru court refused to pause execution of a land judgment because the applicant never proved, in a sworn statement, exactly what loss he would suffer.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (A O Ombwayo, J) on an application by Richard Gichini Wairegi, the 2nd defendant, seeking a stay of execution of the judgment and decree delivered on 14th March 2024, and all consequential orders, pending an intended appeal to the Court of Appeal. The applicant lodged a Notice of Appeal dated 18th March 2024 and argued that the appeal raised serious triable issues with high chances of success, that he held a valid title to the suit property and risked dispossession, and that the appeal would be rendered nugatory without a stay. The plaintiff, Margaret Njoki Njoroge, in her replying affidavit, stated she had developed rental residential houses on the land by April 2016 before its allegedly fraudulent registration in the names of the 1st and 2nd defendants, collects rent of Kshs37,000 monthly, and should not be denied the fruits of her judgment. The court grounded the application in Order 42 rule 6 of the Civil Procedure Rules 2010 and its three conditions: substantial loss, no unreasonable delay, and security. It found the application was brought within reasonable time but held that the applicant failed to demonstrate, by affidavit, that he would suffer substantial loss; the court cannot infer or imply substantial loss, applying Machira t/a Machira & Co Advocates v East African Standard (2002) KLR 63. The application was dismissed with costs.

Key legal issues

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01

Substantial loss as a condition for stay of execution pending appeal

Holding

The application was dismissed because the applicant failed to demonstrate substantial loss on affidavit

Reasoning

The court found the application was brought within reasonable time, satisfying the delay condition. However, the applicant did not demonstrate by affidavit that he would suffer substantial loss if stay was not granted. Relying on Machira t/a Machira & Co Advocates v East African Standard (2002) KLR 63, the court held that specific details and particulars of substantial loss must be proved; without demonstrable pecuniary or tangible loss, stay cannot be granted. The application was therefore without merit and was dismissed with costs.

p. 2
02

Statutory conditions for stay under Order 42 rule 6 of the Civil Procedure Rules 2010

Holding

The three conditions are substantial loss, application without unreasonable delay, and security for due performance of the decree

Reasoning

The court recited Order 42 rule 6(2) of the Civil Procedure Rules 2010, which bars stay unless the court is satisfied that substantial loss may result unless the order is made, that the application was made without unreasonable delay, and that security for the due performance of the decree has been given. The applicant satisfied the delay limb but failed on substantial loss, with no finding on security.

p. 2

Legal principles established

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  • An applicant for stay of execution must prove specific details and particulars of substantial loss; the court cannot infer or imply substantial loss - it must be proved by affidavit
  • An appeal or second appeal does not operate as a stay of execution; the court appealed from may, for sufficient cause, order stay subject to the conditions of substantial loss, no unreasonable delay and security

Court orders

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  1. 1.The application for stay of execution is dismissed with costs
On appeal from
Environment and Land Court (judgment sought to be appealed to the Court of Appeal)
Not stated in judgment
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules 2010

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, "Njoroge v Kinuthia & another (Environment & Land Case 101 of 2017) [2024] KEELC 3935 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3935/eng@2024-05-15

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