Otim & another v Elsek and Elsek Company Limited & 2 others (Environment & Land Case 833 of 2017) [2024] KEELC 4315 (KLR)
The bottom line
#A Kajiado court refused to pause execution of a judgment because the losing party proved no loss and offered no security — all three stay conditions must be met.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The applicant did not prove substantial loss; mere allegation that he would suffer loss in excess of Kshs. 150 million was insufficient as he did not claim to reside on or face eviction from the suit land
The court held that substantial loss must be proved, not merely alleged. The applicant did not aver that he lives on the suit land or that he would be evicted and rendered destitute if execution proceeded. Without such proof, the first prerequisite under Order 42 rule 6(2)(a) failed.
Unreasonable delay
The application was made without unreasonable delay, but this alone was insufficient because the conditions are conjunctive
The court found in the applicant's favour on delay, holding that the word 'and' in Order 42 rule 6(2)(a) requires all three conditions to coexist. Satisfaction of only one prerequisite cannot sustain a stay application where the others fail.
Security for due performance of the decree
The applicant offered nothing as security and gave no indication how he would repay the loan to the 2nd defendant if the appeal failed
The applicant spoke only of success in the appeal, without offering security or demonstrating assets equal to or exceeding the loan owed to the 2nd defendant. Since success and failure are two sides of the same coin, an applicant must show readiness to perform the decree if he loses. This failure defeated the application.
Legal principles established
#- The three conditions for the grant of a stay of execution under Order 42 rule 6(2) are conjunctive and not disjunctive; the absence of one prerequisite defeats the whole application
Court orders
#- 1.The notice of motion dated 7/8/2023 is dismissed with costs
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Orders 41 rule 4, 42 Rule 6 and 51 Rule 1 of the Civil Procedure Rules; Article 159 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otim & another v Elsek and Elsek Company Limited & 2 others (Environment & Land Case 833 of 2017) [2024] KEELC 4315 (KLR)", Case Analysis (2024). ELC NO. 833 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4315/eng@2024-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.