Simon Mbocha Kinyati & another v Phoebe Njeri Kamau & another [2019] KEELC 4940 (KLR)
The bottom line
#The High Court refused to pause enforcement of a money-and-land decree because the appellants proved no substantial loss and offered no security.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for stay of execution of the decree pending appeal is merited
Key legal issues
#Whether the applicants satisfied the conditions for stay of execution pending appeal under Order 42 rule 6(2)
The application was brought without undue delay, but the applicants failed to demonstrate substantial loss and failed to provide security, so the application was dismissed.
The court applied the settled principles for stay pending appeal: absence of undue delay, demonstration of substantial loss, and provision of security. While delay was absent, the 1st appellant's averments about investment in the suit property were unsupported by any documents and did not demonstrate substantial loss. The court rejected the submission that the security requirement is discretionary, holding it is set in mandatory terms. The applicants also failed to attach the decree or order appealed against.
Whether the requirement to provide security is mandatory or discretionary
The requirement to provide security under Order 42 rule 6 is mandatory and the applicants' contrary submissions were rejected.
Counsel for the appellants argued that the security requirement is not mandatory and that the court enjoys wide latitude on the issue. The court disagreed, holding that Order 42 rule 6 sets the condition in mandatory terms and that the applicants had neither furnished security nor stated any intention to furnish it. The court found the applicants had failed to satisfy the specific conditions the rule requires.
Legal principles established
#- An applicant for stay of execution under Order 42 rule 6(2) must demonstrate substantial loss, file the application without unreasonable delay, and provide security for due performance of the decree; the security requirement is mandatory.
Court orders
#- 1.Notice of Motion dated 2nd December 2015 dismissed
- 2.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Milimani
- CMCC No. 7352 of 2008
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Act
Relief refused
#Stay of execution of the decree issued on 6th August 2015 pending the hearing and determination of the appeal
Applicants failed to demonstrate substantial loss and failed to offer or undertake to furnish security as required under Order 42 rule 6(2); they also failed to attach the decree/order appealed against
Costs
The costs do abide the outcome of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find no merit in this application and the same is dismissed. The costs do abide the outcome of the appeal.
I find that he has failed to demonstrate that he will suffer substantial loss if these orders are not granted.
I also disagree with their submissions that the court has a wide latitude on the issue of security.
It is clear from the above provision that it requires specific conditions to be met by the applicant in order for orders of stay to be granted.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Mbocha Kinyati & another v Phoebe Njeri Kamau & another [2019] KEELC 4940 (KLR)", Case Analysis (2019). Milimani CMCC No. 7352 of 2008 (application dated 2nd December 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4940/eng@2019-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.