Karungu v Masira & another (Environment & Land Case 540 of 2016) [2024] KEELC 5683 (KLR)
The bottom line
#The Environment and Land Court in Nakuru halted eviction proceedings pending appeal, but only because the landowner promised Kshs. 500,000 as security within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for stay of execution met the threshold under Order 42 Rule 6
Yes - the application was filed without undue delay, substantial loss was shown by the applicant's residence and developments on the suit property, and the applicant offered security
The court applied Order 42 Rule 6: the judgment was delivered on 22nd September 2023 and the application filed on 6th October 2023, so delay was not unreasonable. The applicant had built a matrimonial home on the land, and in land matters stay preserves the substratum of the case pending appeal. The applicant expressed willingness to offer security, and the court conditioned the stay on a deposit of Kshs. 500,000.
The purpose of security under Order 42 Rule 6
Security guarantees due performance of the decree ultimately binding on the applicant; it is not a punishment
Relying on Arun C. Sharma v Ashana Raikundalia as adopted in Ena Investment Limited v Benard Ochau Mose, the court reasoned that civil process treats the judgment like a debt, making the applicant a judgment debtor, and security under Order 42 rule 6 must serve the purpose of guaranteeing due performance of the decree.
Legal principles established
#- Proof of substantial loss is the cornerstone of an application for stay of execution and must be proved, not merely asserted
- A mere mention of imminent eviction under a decree issued after a full hearing is not proof of substantial loss
Court orders
#- 1.Stay of execution of the judgment and decree delivered on 22nd September 2023 and all consequential orders granted pending appeal on condition that the Applicant deposits Kshs. 500,000 in a joint interest-earning account of the Advocates for the Plaintiff and the 1st Defendant within 30 days, failing which the order lapses
- 2.Costs of the application to abide by the outcome of the appeal
- Jurisdiction invoked
- Order 42 Rule 6 and Section 3A of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Karungu v Masira & another (Environment & Land Case 540 of 2016) [2024] KEELC 5683 (KLR)", Case Analysis (2024). Not stated on the face of the ruling (ruling on Notice of Motion dated 6th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5683/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.