[2022] KEELC 403 (KLR)
The court found that the applicant failed to demonstrate substantial loss that would result if stay was not granted, as mere occupation and the existence of a pending appeal are insufficient. The applicant also failed to offer any security for the due performance of the decree and did not provide evidence that...
Source-derived case information.
- Citation
- [2022] KEELC 403 (KLR)
- Parties
- Applicant: Daniel Mburunga Kiriamburi; Respondent: Murungi M’Ananga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- ? 2 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance, Delay in Filing, Eviction Risk
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Mburunga Kiriamburi
Applicant
Murungi M’Ananga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 2 Whether the application for stay was filed without undue delay.
- 3 Whether the applicant has offered security for the due performance of the decree.
Ratio Decidendi
The court found that the applicant failed to demonstrate substantial loss that would result if stay was not granted, as mere occupation and the existence of a pending appeal are insufficient. The applicant also failed to offer any security for the due performance of the decree and did not provide evidence that execution had commenced. The delay in filing the application was explained and found not to be inordinate. However, the absence of specific details regarding loss, security, and execution led the court to conclude that the requirements under Order 42 Rule 6 of the Civil Procedure Rules were not met. Consequently, it was not in the interest of justice to grant the stay of execution...
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
MISC. NO. 2 OF 2022
DANIEL MBURUNGA KIRIAMBURI................APPLICANT
VERSUS
MURUNGI M’ANANGA ...................................RESPONDENT
RULING
1. The court is asked to grant a stay of execution of the judgment delivered on 24. 11. 2021 by the lower court based on the affidavit sworn on 25. 1.2022 by Daniel Mburunga Kiriamburi and grounds on the face of the application. Order 42 Rule 6 Civil Procedure Rules grants the court the power to issue orders of stay of execution upon satisfaction of the requisites namely demonstration of substantial loss and damage, filing of the application without undue delay, offer for security for the due satisfaction of the decree should the appeal be unsuccessful and whether it is in the interest of justice to grant the orders sought.
2. Expounding on the above principles the court in RWW vs EKW (2019) eKLR held the purpose of stay pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory. Further the court held in doing so, it has to weigh this right against the rights of a successful litigant who should not be deprived of the fruits of his judgment.
3. In other words, the court is called upon to ensure no party suffers prejudice that cannot be compensated by an award of costs.
4. As regard substantial loss the court in Jeny Luesby vs Standard Group Ltd (2014) eKLRheld the commencement of an execution was a lawful process and could not be equated to substantial loss. Further in Butt vs Rent Restriction Tribunal (1982) KLR 417the court held power to grant a stay of execution was discretionary while in National Industrial Credit Bank Ltd vs Aquinas Francis Wasike & another (2006) eKLR the court held the legal duty was on the applicant to prove the allegations that an appeal would be rendered nugatory, if the application was not aloowed.
5. In this case the judgment was entered against the applicant on 24. 12. 2021 whereas this application was filed on 27. 1.2022. The reasons given for the delay is that the typed judgment was not ready until 12. 1.2022.
6. I am satisfied there was no inordinate delay and if any the same is sufficiently explained.
7. Turning to the issue of substantial loss the appellant states he bought the suitland in 2013 and has been in occupation. However the trial court held he had not adduced enough evidence to prove the same since the agreement was wrongly written.
8. The appellant now says he is exposed to the danger of an eviction from the suit land hence there was need to preserve the same until the appeal which he says has arguable points is heard and determined.
9. In Machira t/a Machira Co Advocates vs East African Standard (2002) KLR 63,the court held an applicant must prove specific details and particulars of substantial loss otherwise without demonstrable pecuniary or tangible loss to the satisfaction of the court it shall not grant stay.
10. It is not enough to state one is in occupation and that there was a pending appeal. In this matter the trial court held there was no prove of purchase of the suit land. The advocate alleged to have witnessed the sale agreement testified that it was a forgery. The applicant had a legal duty to demonstrate over and above occupation on account of an alleged sale, what other loss he was likely to suffer if the application was not allowed.
11. The applicant has failed to demonstrate such loss and has also failed to offer any security for the due performance of the decree. He has not said if the execution process has commenced at all. He has not attached any decree to show the same has been extracted and served upon him for compliance.
12. All these specific details are missing and the court finds it is not in the interest of justice under the circumstances to grant the orders sought.
13. The application is therefore dismissed with costs.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT
THIS 27TH DAY OF APRIL, 2022
In presence of:
Wambua for applicant
HON. C.K. NZILI
ELC JUDGE