Sunshine Villas Limited v County Government of Kisumu & another; Ethics and Anti Corruption Commission (Interested Party) (Environment and Land Case Civil Suit 23 of 2018) [2024] KEELC 5400 (KLR)
The bottom line
#The court paused enforcement of a land judgment so the owner can appeal, but only after paying Kshs 500,000 security and allowing KIWASCO access to its pipes.
What this practically means
#Executive summary
#Key legal issues
#Threshold for stay of execution under Order 42 Rule 6(2)
The application satisfied the conditions: substantial loss, no unreasonable delay, and an offer of security.
The court applied Order 42 Rule 6(2), which requires satisfaction that substantial loss may result unless the order is made, that the application was made without unreasonable delay, and that security has been given. The Plaintiff, as registered proprietor with apartments on the land, risked the building being demolished and the property put beyond its reach if execution proceeded. Delay was not disputed and security was offered.
Whether the danger to public safety posed by the building should defeat the stay
The public-safety concern is addressed by conditions attached to the stay, not by refusing it.
The court accepted that the Plaintiff's possible loss must be weighed against the threat to public safety from the building standing on KIWASCO pipes, but held that the court has power to impose conditions when granting a stay, and the threat should be managed through conditions rather than by fettering the discretion to grant the stay. Conditions imposed included unrestricted KIWASCO access and a Kshs. 500,000 security deposit.
Legal principles established
#- Substantial loss is the cornerstone for granting a stay of execution pending appeal
- A trial court does not assess the merits of an intended appeal when considering a stay; its duty is to prevent substantial loss while the party pursues its right of appeal
Court orders
#- 1.Execution of the judgment delivered on 16th November 2023 is stayed pending the hearing and determination of the intended appeal to the Court of Appeal
- 2.Pending the appeal, the Plaintiff is restrained from selling, transferring or charging Title No. Kisumu Municipality/Block 13/302 together with the developments and improvements thereon
- 3.Pending the appeal, an inhibition shall issue inhibiting registration of any other or further dealings with the suit property and developments thereon
- 4.In the event of damage to KIWASCO's water infrastructure or pipes passing through the suit property, the Plaintiff shall grant KIWASCO unrestricted access for repairs or remedial works
- 5.The Plaintiff shall deposit Kshs. 500,000 in an interest-earning bank account in the joint names of the advocates for the Plaintiff and the Interested Party as security within 30 days, in default of which the stay shall lapse automatically
- 6.Each party shall bear its costs of the application
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending intended appeal to the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sunshine Villas Limited v County Government of Kisumu & another; Ethics and Anti Corruption Commission (Interested Party) (Environment and Land Case Civil Suit 23 of 2018) [2024] KEELC 5400 (KLR)", Case Analysis (2024). Not stated in the judgment excerpt (ruling on Notice of Motion dated 30th November 2023 in the suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5400/eng@2024-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.