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ELCDismissedNotice of Motion dated 5th June 2024 (Appeal pending)· [2025] KEELC 551 (KLR)

Mary Nyaguthii Mugo v Mary Wagaki Mureithi

High Court of Kenya
14 February 2025
1,422 words in judgment
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The bottom line

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The High Court dismissed a stay application filed five months late, ruling that vague claims of loss cannot stop execution of a money judgment in Kenya.

What this practically means

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Executive summary

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By a Notice of Motion dated 5th June 2024, the Appellant sought a stay of execution of a judgment delivered by the lower court in December 2023 and a halt to the public auction of LR. No. Thegenge/Kianjogu/1583 scheduled for 6th June 2024, pending the hearing of her appeal against a monetary decree of Kshs. 890,000/= plus costs arising from a collapsed sale of land agreement. The Respondent opposed, asserting she had been neither served with the appeal nor was the monetary judgment capable of being rendered nugatory, and that the Appellant had been duly served with the sale notice. The court, applying Order 42 Rule 1 and 2 of the Civil Procedure Rules, framed two issues: whether the application was made without unreasonable delay, and whether the Appellant would suffer substantial loss. On the first, the court found the application filed some five months after judgment without explanation, prompted only by the scheduled auction. On the second, applying Samvir Trustees Ltd v Guardian Bank Ltd and Equity Bank Ltd v Taiga Adams Company Ltd, the court held that the Appellant's assertion of irreparable loss was unsubstantiated and that, for a monetary decree, she needed to show the Respondent could not refund the decretal sum if the appeal succeeded. Finding no merit in the Motion, the court dismissed it with costs to the Respondent on 14th February 2025.

Key legal issues

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01

Whether the stay application was made without unreasonable delay

Holding

The application was made some five months after judgment without any explanation for the delay; the Appellant was only moved to act when the Respondent scheduled the auction.

Reasoning

The judgment was delivered on 13th December 2023. Although the Memorandum of Appeal was filed within a month, the stay application was not filed until 5th June 2024, prompted by the scheduled auction of 6th June 2024. The Appellant did not explain this delay, failing the requirement under Order 42 Rule 2(1)(a) that the application be made without unreasonable delay.

p. 3
02

Whether the Appellant would suffer substantial loss if stay is not granted

Holding

The Appellant failed to demonstrate substantial loss; the decree was monetary (Kshs. 890,000/= plus costs) and such a decree cannot be rendered nugatory absent evidence that the Respondent could not refund the decretal sum.

Reasoning

The Appellant's assertion of irreparable loss of proprietary interest was mere assertion without empirical or documentary evidence, per Samvir Trustees and Equity Bank v Taiga Adams. The impugned judgment was a monetary decree arising from a collapsed sale of land agreement. The Appellant was required to show the Respondent would be unable to refund the decretal sum if the appeal succeeded; no such allegation was established.

p. 4

Legal principles established

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  • Mere assertions of substantial loss are insufficient; the applicant must support the claim with empirical or documentary evidence.
  • For a monetary decree, substantial loss is shown by demonstrating that the decree-holder would be unable to refund the decretal sum if the appeal succeeds.

Court orders

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  1. 1.The Motion dated 5th June 2024 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure Act/Rules (Civil Procedure)Order 42 Rule (1) and (2)
  • Land Actrequisite notices (referred to generally)

Cases cited (2)

  • Samvir Trustees Ltd. –vs- Guardian Bank Ltd.
    (Nairobi (Milimani) HCCC No. 795 of 1997
  • Equity Bank Ltd. –vs- Taiga Adams Company Ltd.
    (2006) eKLR
On appeal from
Lower Court (magistrates' court)
Jurisdiction invoked
Order 42 Rule 1 and 2 of the Civil Procedure Rules

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, "Mary Nyaguthii Mugo v Mary Wagaki Mureithi", Case Analysis (2025). Notice of Motion dated 5th June 2024 (Appeal pending). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/551/eng@2025-02-14

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