Kimani & 2 others v Akuisi Farmers Company Limited & another (Environment and Land Appeal E046 of 2023) [2024] KEELC 5474 (KLR)
The bottom line
#A Kenyan land court granted eviction stay only after judgement debtors agreed to deposit Kshs. 300,000 security, warning imminent eviction alone does not prove substantial loss.
What this practically means
#Executive summary
#Key legal issues
#Threshold for stay of execution under Order 42 Rule 6(2)
Applicants satisfied the requirements: the application was filed timeously and they were willing to give security; stay was granted conditional on a deposit of Kshs. 300,000.
The court applied Order 42 Rule 6(2), which requires substantial loss, absence of unreasonable delay and security for due performance of the decree. Judgment was delivered on 13th December 2023, the memorandum of appeal was filed on 29th December 2023, and the application on 24th January 2024, which the court found timeous. The applicants offered to abide by security directions, and the court fixed the deposit at Kshs. 300,000 in a joint interest-earning account within 30 days, failing which the order lapses.
Substantial loss
Mere imminent eviction is not proof of substantial loss; the applicants had already enjoyed a 90-day stay, and substantial loss must be evidenced.
Relying on Kenya Shell Limited v Kibiru and Siegfried Busch v MCSK, the court held that substantial loss is the cornerstone for granting stay and must be demonstrated by evidence. Here the eviction order flowed from a judgment after a full hearing, and the applicants had already been granted a 90-day stay which had lapsed. No material evidence demonstrated, for example, the claimed coffee worth 60 million. The court nonetheless preserved the position by conditioning stay on security.
Defect of replying affidavit commissioned by an advocate allegedly interested
The affidavit was not struck out because there was no evidence the commissioning advocate acted for the respondents.
Counsel for the applicants invoked Section 4(1) of the Oaths and Statutory Declarations Act and two authorities to urge that the replying affidavit sworn before Muthoni P. Njuguna, an advocate in the firm on record for the respondents, was defective. The court examined the supplementary affidavit sworn on 10th July 2024 and found no evidence that the said advocate acted for the respondents, and therefore declined to strike out the affidavit.
Legal principles established
#- A court considering stay of execution must balance the rights of the successful litigant against those of the aggrieved appellant, and discretionary power must be exercised judiciously so as not to prevent an appeal.
Court orders
#- 1.Applicants to deposit Kshs. 300,000 in a joint interest-earning account for the Advocates for the Applicants and the Respondents within 30 days, failing which the order lapses (stay of execution granted on those terms)
- 2.Costs of the application to abide the outcome of the appeal
- On appeal from
- Trial court (not named in the ruling)
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani & 2 others v Akuisi Farmers Company Limited & another (Environment and Land Appeal E046 of 2023) [2024] KEELC 5474 (KLR)", Case Analysis (2024). Notice of Motion dated 24th January 2024 (ELC appeal from trial court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5474/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.