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ELCPartially AllowedNot stated in the judgment (ELC at Kwale)· [2024] KEELC 4276 (KLR)

Said Mwinyikai Tomas & Another v Elly Enos Wesonga & Others (Stay of Execution Pending Appeal)

Environment and Land Court
23 May 2024
ADA.E Dena
1,938 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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In this ruling, the Environment and Land Court at Kwale (A.E Dena, J) determined a Notice of Motion by the 1st and 2nd Defendants seeking stay of execution of the court's judgment of 18/9/2023 and the resultant decree of 4/10/2023, which had declared the Plaintiffs the lawful owners of property Kwale/Diani Beach Block/1456 and ordered eviction and a permanent injunction. The Applicants, through their advocate Elly Enos Wesonga, argued that a Notice of Appeal had been filed without delay but typed proceedings could not be obtained, and that execution would render the appeal nugatory. The Plaintiffs opposed, noting the 90-day vacant possession timeline had lapsed and no Record of Appeal had been filed, and proposed security of Kshs. 30,000,000/=. The court framed a single issue: whether the Applicants met the Order 42 Rule 6(2) threshold. Relying on Consolidated Marine v Nampijja, Butt v Rent Restriction Tribunal, Mukuma v Abuoga, Arun C Sharma and Absalom Dova, the court found substantial loss (demolition of the Defendants' constructions would render the appeal irrelevant), no unreasonable delay given delays in obtaining typed proceedings, and held the proposed Kshs. 30 million security excessive, distinguishing Gianfranco Manenthi as concerning a monetary decree. The court granted stay of execution conditional upon the Applicants depositing Kshs. 350,000/= or a bank guarantee within 45 days, directed the Deputy Registrar to prioritise typed proceedings within 30 days, ordered the stay to lapse automatically upon default, and ordered costs of the application to abide the appeal.

Key legal issues

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01

Substantial loss

Holding

The court found substantial loss established because demolition of the Defendants' constructions before appeal would render the appeal irrelevant

Reasoning

The judgment had declared the Plaintiffs owners and ordered eviction; if the appeal succeeded, the Defendants would suffer loss through demolition of their property. The court held this would be substantial loss warranting exercise of discretion in favour of the Applicants.

p. 3
02

Unreasonable delay

Holding

The application filed 2 months after judgment was within a reasonable time given delays in procuring typed proceedings

Reasoning

Though filed on 27/11/2023, two months after judgment, the court accepted counsel's explanation that typed proceedings could not be obtained despite follow-up with the Deputy Registrar, and found no unreasonable delay.

p. 3
03

Security for costs

Holding

Security of Kshs. 350,000/= imposed instead of the Plaintiffs' proposed Kshs. 30,000,000/=; exorbitant security would deny a party the right of appeal

Reasoning

The court held the Kshs. 30 million proposal was based on the property's value and was excessive. Balancing both parties' rights, it fixed Kshs. 350,000/= or a bank guarantee, failing which the stay lapses automatically.

p. 3

Legal principles established

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  • The purpose of stay of execution is to preserve the subject matter so the appeal is not rendered nugatory
  • Security under Order 42 guarantees due performance of the decree, not punishment of the judgment debtor
  • Stay of execution balances the applicant's right of appeal against the decree holder's rights; security should not be exorbitant

Court orders

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  1. 1.The Applicants shall deposit a sum of Kshs. 350,000/= in the court's account and or a bank guarantee being Security for Costs within 45 days of the date of this Ruling
  2. 2.The Deputy Registrar ELC Kwale shall ensure typed proceedings be prioritised and made available to the Applicants within 30 days of this ruling
  3. 3.Failure to comply with order (a), the order of stay herein issued shall automatically lapse
  4. 4.Costs of the Application to abide the outcome of the Appeal
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules; Sections 1A and 1B of the Civil Procedure Act

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, "Said Mwinyikai Tomas & Another v Elly Enos Wesonga & Others (Stay of Execution Pending Appeal)", Case Analysis (2024). Not stated in the judgment (ELC at Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4276/eng@2024-05-23

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