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ELCDismissedELC NO. 833 of 2017· [2024] KEELC 4315 (KLR)

Otim & another v Elsek and Elsek Company Limited & 2 others (Environment & Land Case 833 of 2017) [2024] KEELC 4315 (KLR)

Environment and Land Court
28 May 2024
985 words in judgment
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (M.N. Gicheru, J) determined a notice of motion dated 7/8/2023 by the 1st plaintiff seeking stay of execution of the court's judgment of 16/5/2023, which had dismissed his suit, pending an appeal to the Court of Appeal. The motion, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 41 rule 4, 42 Rule 6 and 51 Rule 1 of the Civil Procedure Rules, was grounded on the applicant's alleged high chances of success on appeal, the 1st defendant's alleged alienation of the suit property in execution, taxation of costs, and claimed irreparable loss exceeding Kshs. 150 million. The 2nd defendant opposed, asserting the judgment was sound, that it held a charge over the suit land securing an outstanding loan, and that the applicant had not offered security for due performance of the decree. The 2nd plaintiff additionally contended the motion was incompetent for referring to an undisclosed judgment of the High Court. The court framed three issues drawn from Order 42 rule 6(2): substantial loss, absence of unreasonable delay, and security for due performance of the decree. It found delay was not an issue but that substantial loss was merely alleged and not proved, and that no security had been offered, holding the three conditions conjunctive. The motion was dismissed with costs on 28 May 2024.

Key legal issues

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01

Substantial loss

Holding

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

Reasoning

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.

p. 3
02

Unreasonable delay

Holding

The application was made without unreasonable delay, but this alone was insufficient because the conditions are conjunctive

Reasoning

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.

p. 3
03

Security for due performance of the decree

Holding

The applicant offered nothing as security and gave no indication how he would repay the loan to the 2nd defendant if the appeal failed

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The notice of motion dated 7/8/2023 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 41 rule 4; Order 42 Rule 6; Order 51 Rule 1
  • Constitution of Kenya, 2010Article 159
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

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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, "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.