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ELCDismissednot_stated· [2025] KEELC 1379 (KLR)

Emaar Consult Limited v Lakhman (Environment and Land Appeal E105 of 2024) [2025] KEELC 1379 (KLR)

High Court of Kenya
14 March 2025
2,439 words in judgment
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The bottom line

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The High Court dismissed a company's bid to pause payment of a Kshs. 8 Million judgment because it proved no real loss and offered no security.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 9th August 2024 in which the Appellant sought stay of execution of a ruling delivered on 8th July 2024 by Hon. Opande in Nairobi MCELC No. 502 of 2023, which had allowed the Respondent's application for judgment on admission of Kshs. 8 Million owed under a settlement plan. The application was premised on Sections 1A, 1B, 3, 3A and 79G of the Civil Procedure Act and Orders 9 Rule 9, 42 Rule 6 and 51 of the Civil Procedure Rules. The Appellant, through its Assistant Managing Director Hassan Jirow, argued that the appeal raised arguable grounds and that the company would suffer irreparable loss as the Respondent's funds had been invested in a project. The Respondent opposed, contending the application was a delaying tactic, that the Appellant had received Kshs. 150 Million in mortgages from other purchasers, and that no substantial loss or security had been demonstrated. The court framed a single issue: whether the conditions in Order 42 Rule 6 were satisfied. It found the application was filed without undue delay, but held that the Appellant failed to prove substantial loss, since the assertion that its projects would stall was unsupported by evidence and the Kshs. 8 Million was not shown to be substantial to its projects. The court further found the mandatory security condition unfulfilled, as the Applicant never expressed willingness to provide security. The application was dismissed with costs on 14th March 2025.

Key legal issues

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01

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

Holding

The Applicant did not prove substantial loss; the claim that its projects would stall was unsupported by evidence and the Kshs. 8 Million decree was not shown to be substantial to its projects.

Reasoning

The court noted that an applicant must go beyond vague and general assertions and lay a basis for the alleged loss. The Applicant only said it had invested the Respondent's funds in a project. The court found the Applicant did not demonstrate how refunding Kshs. 8 Million would cause substantial loss, and the claim that projects would stall lacked evidential support.

p. 5
02

Whether the application was brought without unreasonable delay

Holding

Yes - the ruling was delivered on 8th July 2024 and the application filed on 9th August 2024, so the application was made without undue delay.

Reasoning

The court compared the date of the ruling appealed from (8th July 2024) with the filing date of the application (9th August 2024) and found the delay of about one month was not unreasonable, satisfying that limb of Order 42 Rule 6(2).

p. 5
03

Whether the Applicant offered security for the due performance of the decree

Holding

No - the Applicant did not express willingness to provide security, failing the mandatory condition.

Reasoning

Relying on Arun C Sharma and Focin Motorcycle, the court observed security under Order 42 guarantees due performance of the decree and that offering security is a mark of good faith. Since the Applicant never expressed willingness to provide security, this mandatory condition was not satisfied.

p. 5

Legal principles established

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  • An applicant for stay of execution must prove, not merely allege, substantial loss; mere assertion that a project will stall without evidence is insufficient.
  • Under Order 42 Rule 6(2)(b), provision of security for due performance of the decree is mandatory and an applicant who does not express willingness to provide security fails that condition.

Court orders

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  1. 1.The Notice of Motion dated 9th August 2024 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 79G
  • Civil Procedure RulesOrder 9 Rule 9; Order 42 Rule 6(1) and (2); Order 51

Cases cited (15)

  • Butt v Rent Restriction Tribunal
    [1979] eKLR (also cited as (1982) KLR 417)
  • Sewankambo Dickson v Ziwa Abby
    HCT-00-CC MA 0178 of 2005
  • Ujagar Singh vs Runda Coffee Estates Limited
    [1966] EA 263
  • Siegfried Busch vs MCSK
    [2013] eKLR
  • RWW v EKW
    [2019] eKLR
  • Pauline Yebei & another v Estate of Kiprotich Arap Letting represented by Andrew Kiprotich Kiprono
    [2017] eKLR
  • Hamisi Juma Mbaya v Asman Amakecho Mbaya
    [2018] eKLR
  • Bonface Kariuki Wahome v Peter Nziki Nyamai & another
    [2019] eKLR
  • Consolidated Marine vs Nampijja & Another
    Civil App No. 93 of 1989 (Nairobi)
  • Charles Wahome Gethi Vs Angela Wairimu Gethi
    (2008) eKLR
  • Mukuma vs Abuoga
    (1988) KLR
  • Kenya Shell Ltd v Benjamin Keruga Kibiru and others
    1982-85 1 KAR 1018
  • Pan African Insurance Co. Ltd vs International Air Transport Association
    High Court No. 86 of 2006
  • Arun C Sharma Vs Ashana Rakundalia T/A Raikundalia & Co. Advocates & 2 Others
    (2014) eKLR
  • Focin Motorcycle Co. Limited v Ann Wambui Wangui & another
    [2018] eKLR
On appeal from
Nairobi Magistrates Court (MCELC)
Nairobi MCELC No. 502 of 2023
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules (appellate jurisdiction over subordinate court decision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Emaar Consult Limited v Lakhman (Environment and Land Appeal E105 of 2024) [2025] KEELC 1379 (KLR)", Case Analysis (2025). not_stated. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1379/eng@2025-03-14

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