Dzuya & another v Anjarwalla (Legal Representative Of The Estate Of Hussein Karimbhai Anjarwalla) (Environment & Land Case 132 of 2019) [2024] KEELC 4394 (KLR)
The bottom line
#A Mombasa court gave landowners extra time to appeal and paused eviction proceedings, but only after depositing half the judgment amount as security.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to file Notice of Appeal
The delay of 82 days was not inordinate; the explanation (pursuing certified copies of proceedings and judgment, with delay occasioned by the court registry) was plausible, cogent and sufficient, and the defendant would suffer no prejudice as he could still realise his decree if no stay issued.
The court applied Section 95 of the Civil Procedure Act and Rule 4 of the Appellate Jurisdiction Act, guided by Paul Wanjohi Mathenge and Nicholas Kiptoo Arap Korir Salat. It found the applicants followed up with the registry within reasonable time, that the delay was occasioned by the fault of the court registry, and that it would be unfair to blame them for it.
Stay of execution pending appeal
Substantial loss was proved (risk of eviction and destitution), the application was made without undue delay, but the applicants failed to provide for security; stay granted conditional on furnishing security.
The court applied Order 42 Rule 6(2) and the Butt v Rent Restriction Tribunal principles. It found applicants would suffer substantial loss as they risked eviction from the suit property, held the application timeous, but noted no security was provided. It invoked its discretion to order security equivalent to half the decretal sum as a condition for stay.
Security for due performance of the decree
Security is mandatory under Order 42 Rule 6(2)(b); the applicants made no provision for it, so the court imposed security equivalent to half the decretal sum in a fixed interest-earning account as a condition of stay.
Relying on Aron C. Sharma and Gianfranco Manenthi, the court noted the purpose of security is to guarantee due performance of the decree, not to punish the judgment debtor, and that the winner of litigation should not be denied the fruits of judgment if the appeal fails. The conditions being conjunctive, stay could issue only upon fulfilment of the security condition.
Costs of the application
Costs follow the event under Section 27(1) of the Civil Procedure Act, but the court reserved its discretion and ordered no costs.
The court cited Supreme Court authority that the successful party is entitled to costs unless exceptional circumstances exist. It exercised its discretion in favour of neither party, reserving costs and directing that there be no orders as to costs.
Legal principles established
#- The court's discretion to extend time is unfettered but must be exercised judicially, considering the length and reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent
- The three conditions for granting stay of execution pending appeal under Order 42 Rule 6(2) are conjunctive and not disjunctive and must be met simultaneously
- Substantive justice demands that a party be accorded every reasonable opportunity to ventilate grievances on appeal
Court orders
#- 1.The Notice of Motion application dated 31st July, 2023 be and is found to have merit hence allowed in its entirety but upon fulfilment of stated pre-conditions
- 2.An order to stay execution of the Court's Judgment and subsequent decree/order arising from the Judgment of the Honourable Justice L. L. Naikuni delivered on 10th May, 2023 pending the hearing and determination of the intended appeal in the Court of Appeal
- 3.Leave granted to the Plaintiff/Applicant to file their Notice of Appeal out of time
- 4.The draft Notice of Appeal filed herein be deemed as duly filed upon payment of the requisite court fees/charges
- 5.The Plaintiffs/Applicants to furnish within 45 days from the date of delivery of the Ruling a tangible security for the due performance of the Decree pending the hearing and final determination of the impugned appeal
- 6.There shall be no orders as to costs
- Jurisdiction invoked
- Sections 1A, 1B, 3A & 95 of the Civil Procedure Act, Cap. 21; Order 40 Rule 2, Order 50 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, 2010; Section 7 of the Appellate Jurisdiction Act, Cap 9
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dzuya & another v Anjarwalla (Legal Representative Of The Estate Of Hussein Karimbhai Anjarwalla) (Environment & Land Case 132 of 2019) [2024] KEELC 4394 (KLR)", Case Analysis (2024). ELC Case No. 132 of 2019 [OS]. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4394/eng@2024-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.