Ihururu Housing Co-operative Society Limited v Ng’ayu & another (Environment and Land Appeal 34 of 2022) [2024] KEELC 5703 (KLR)
The bottom line
#A Kenyan court dismissed a co-operative society's bid to pause paying a Kshs 765,265 judgment because it showed no real loss and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The Appellant failed to demonstrate any loss it stood to suffer if stay was not granted
The supporting affidavit merely narrated procedural history - the dismissal of the earlier stay application and entry of judgment - without showing how execution would irreparably affect the Appellant or negate the core of its position as a successful appellant. Repetition of statutory language or general words from precedent does not discharge the duty to demonstrate substantial loss.
Security for due performance
A party against whom a monetary decree is entered must offer security to warrant a stay, and none was offered
The decree was monetary (Kshs. 765,265/= including interest and costs). Under Order 42 Rule 6(2)(b), security for due performance of the decree is a mandatory condition. The Appellant did not offer any security, so the threshold for granting stay was not met.
Legal principles established
#- An applicant for stay of execution must demonstrate substantial loss, absence of undue delay, and offer security for due performance of the decree
- It is not enough to merely state that substantial loss will result or that the appeal will be rendered nugatory; the applicant must establish other factors showing irreparable effect
Court orders
#- 1.The Notice of Motion dated 22nd June 2023 seeking stay of execution is dismissed
- 2.Costs of the application awarded to the Respondents in the Appeal
- On appeal from
- Nyeri Magistrates' Court (MCL & E No. 18 of 2020)
- MCL & E No. 18 of 2020
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ihururu Housing Co-operative Society Limited v Ng’ayu & another (Environment and Land Appeal 34 of 2022) [2024] KEELC 5703 (KLR)", Case Analysis (2024). Notice of Motion dated 22nd June 2023 (arising from Nyeri MCL & E No. 18 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5703/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.