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ELCDismissedApplication dated 30.4.2024 (within appeal filed 17.10.2023)· [2024] KEELC 4788 (KLR)

Ogembo v Nzinga & another (Environment and Land Appeal 36 of 2023) [2024] KEELC 4788 (KLR)

High Court of Kenya
12 June 2024
1,045 words in judgment
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The bottom line

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The High Court in Meru dismissed a bid to stop auction of property because the applicant waited over a year, showed no real loss, and offered no security.

What this practically means

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Executive summary

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This is a ruling by the High Court at Meru (C K Nzili, J) on an application dated 30.4.2024 by James Onyona Ogembo, the appellant in an appeal against a lower court judgment, seeking a temporary injunction restraining the respondents from executing, seizing, repossessing or selling his movable properties pending the hearing of the appeal. The underlying dispute arose from a sale agreement dated 21.7.2020 in which the respondent paid Kshs.440,000/- for 1¼ acres of L.R Abothuguchi/Lower Kaongo/1133, but the appellant failed to transfer the land. The trial court ordered refund of Kshs.440,000/- with interest at commercial rates, Kshs.880,000/- liquidated damages, Kshs.53,800/- crop damages, and costs. Auctioneers proclaimed and attached the applicant's motor vehicles. The court found the application failed on all requirements: the delay of over a year from the decree, and over six months from filing the appeal, was unexplained; applying James Wangalwa, execution per se is not substantial loss and no tangible evidence showed the appeal's substratum would be altered; no security was offered for realization of the decree; and the balance of convenience favoured the successful respondent enjoying the fruits of judgment. Applying established authorities including Samvir Trustee, Kenya Shell, Mwaura Karuga and Visram Ravji Halai, the court dismissed the application with costs on 12 June 2024.

Key legal issues

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01

Unreasonable delay in applying for stay of execution

Holding

The delay of over a year after the decree, and over six months after filing the appeal, was not explained; the application failed on this ground.

Reasoning

The decree was issued on 7.2.2023 and the applicant knew of it upon delivery of judgment. The applicant waited until 30.4.2024 to seek a stay, having earlier withdrawn a prior stay application. The court held that each case is decided on its circumstances and even a one-day delay could be inordinate. The unexplained delay of over a year and two months after the decree, and over six months since filing the appeal, was fatal to the application.

p. 2
02

Substantial/irreparable loss

Holding

No substantial loss was demonstrated; execution is a lawful process and a money decree does not alter the substratum of the appeal.

Reasoning

Applying James Wangalwa v Agnes Naliaka Cheseto, the court held that execution per se is not substantial loss. The decree was a money decree for breach of a sale agreement, and the applicant did not show the execution process was irregular nor that the respondent would be unable to refund the decretal amount if the appeal succeeded. The claim of irreparable loss and flawed execution was unsupported by evidence.

p. 2
03

Security for due realization of the decree

Holding

The applicant offered no security, which weighed against granting the stay.

Reasoning

Drawing on Mwaura Karuga t/a Limit Enterprises v Kenya Bus Service Ltd and Visram Ravji Halai & another v Thornton & Turpin (1963) Ltd, the court held that security offered should be binding and beneficial to both parties and should not disadvantage the successful litigant from realizing the fruits of his judgment. The applicant offered no security at all for the due realization of the decree should the appeal fail.

p. 3

Legal principles established

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  • A stay of execution must be sought without unreasonable delay, and even a short delay can be inordinate depending on the circumstances.
  • Execution per se does not amount to substantial loss; the applicant must show tangible evidence that the substratum of the appeal would be altered if no stay is granted.
  • It is not enough to say the decretal amount is colossal; the applicant must demonstrate how the appeal would be rendered nugatory if execution commences.

Court orders

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  1. 1.The application dated 30.4.2024 is dismissed with costs

Authorities

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Cases cited (5)

  • James Wangalwa vs Agnes Naliaka Cheseto
    (2012) eKLR
  • Samvir Trustee Ltd vs Guardian Bank Ltd
    (2001) eKLR
  • Kenya Shell Ltd vs Karuga Kibiru & another
    (1986) eKLR
  • Mwaura Karuga t/a Limit Enterprises vs Kenya Bus Service Ltd & others
    (2015) eKLR
  • Visram Ravji Halai & another vs Thortorn & Turpin (1963) Ltd
    NRB Civil Application No.15 of 1990
On appeal from
Lower court (trial court)
Jurisdiction invoked
Appellate/stay jurisdiction of the High Court over an appeal from the lower court (application for temporary injunction/stay of execution pending appeal)

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, "Ogembo v Nzinga & another (Environment and Land Appeal 36 of 2023) [2024] KEELC 4788 (KLR)", Case Analysis (2024). Application dated 30.4.2024 (within appeal filed 17.10.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4788/eng@2024-06-12

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