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ELCAllowedNot stated in the judgment

Nancy Wanjiru Wangai v National Social Security Fund & 4 others [2019] KEELC 1475 (KLR)

Environment and Land Court
26 September 2019
1,460 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Nairobi court paused execution of a land judgment because the property owner showed real risk of loss and agreed to deposit Kshs.5 million as security.

What this practically means

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Executive summary

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This is a ruling by L. Komingoi J of the Environment and Land Court, Nairobi, delivered on 26 September 2019 on a notice of motion dated 22 February 2016 by the 3rd defendant, Patrick Nyamu, under Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules 2010 and Sections 1A, 1B, 3A and 63 of the Civil Procedure Act. The applicant sought stay of execution of the judgment and decree of 29 January 2016 pending an intended appeal. The application was opposed by the plaintiff, Nancy Wanjiru Wangai, the decree holder, who contended that the conditions in Order 42 rule 6(2) had not been met, that her title was indefeasible and unchallenged, that no arguable appeal was demonstrated, and that as a successful litigant she was entitled to the fruits of her judgment. The court canvassed the application by written submissions and framed a single issue: whether the application was merited. Applying Order 42 rule 6(2) and the authorities of Peter Odande and Feissal Amin Janmohammed, the court found the application was brought without undue delay, that substantial loss was demonstrated because the applicant had fully developed three- and six-storey residential flats occupied by tenants which risked demolition, and that he was willing to furnish security. The court allowed the application conditionally: Kshs.5,000,000 to be deposited in a joint interest-earning account within 60 days, failing which the stay lapses; monthly deposits of Kshs.460,000 from 5 November 2019 until the appeal is determined; costs of the application to the defendant/applicant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application for stay of execution pending appeal is merited

Key legal issues

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01

Whether the applicant satisfied the conditions for stay of execution pending appeal under Order 42 rule 6(2)

Holding

The application was brought without undue delay, substantial loss was demonstrated (developed and tenanted flats risk demolition, respondent's ability to refund decretal sum unknown), and the applicant was willing to provide security

Reasoning

The court applied the settled principles for stay of execution: absence of undue delay, demonstration of substantial loss, and offer of security. The applicant had fully developed three- and six-storey residential blocks occupied by tenants which could be demolished if execution proceeded, and the decree holder's financial status was unknown, meaning a refund could not be guaranteed if the appeal succeeded. The applicant offered to abide by terms as to security, warranting the exercise of discretion in his favour.

p. 3

Legal principles established

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  • The conditions for grant of stay of execution under Order 42 rule 6(2) are that the application be made without unreasonable delay, that substantial loss be demonstrated, and that security for due performance of the decree be given

Court orders

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  1. 1.That the 3rd defendant/applicant do deposit Kshs.5,000,000 in a joint interest earning account in the names of the plaintiff's advocate and the 3rd defendant's advocates within sixty (60) days from the date of the ruling, in default the stay of execution orders will lapse
  2. 2.That the 3rd defendant/applicant do deposit the admitted monthly rent of Kshs.460,000 monthly with effect from 5th November 2019 in a joint interest earning account in the names of the plaintiff's advocate and the 3rd defendant's advocate until determination of the appeal
  3. 3.The costs of the application be borne by the defendant/applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B, 3A and 63 of the Civil Procedure Act and the inherent jurisdiction of the court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion, I find merit in this application. I find that the 3rd defendant/applicant has put forth sufficient reasons to warrant this court to exercise its discretion in his favour.
p. 3discretionary finding on stay
That the 3rd defendant/applicant do deposit Kshs.5,000,000 in a joint interest earning account in the names of the plaintiff's advocate and the 3rd defendant's advocates within sixty (60) days from the date of this ruling in default the stay of execution orders will lapse.
p. 3final orders - security
In addition the 3rd defendant/applicant do deposit the admitted monthly rent of Kshs.460,000 monthly with effect from 5 th November 2019 in a joint interest earning account in the names of the plaintiff's advocate and the 3 rd defendant's advocate until determination of the appeal.
p. 3final orders - monthly deposits until appeal determined

Issues in the judgment

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minor

The judgment (dated 26 September 2019) orders monthly rent deposits 'with effect from 5th November 2019', a date after the delivery of the ruling; the applicant also cited '[982] KLR 417' (apparent typo for 1982) and the Feissal Amin Janmohammed quotation appears garbled in the judgment text

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, "Nancy Wanjiru Wangai v National Social Security Fund & 4 others [2019] KEELC 1475 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1475/eng@2019-09-26

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