Hindia Ibrahim Adan & another v Abdi Hassan Samatar [2021] KEELC 3608 (KLR)
The bottom line
#The Environment and Land Court in Garissa refused to pause execution of a land judgment because the applicant proved no real loss and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
No substantial loss was demonstrated because the suit land is bare, undeveloped and unoccupied by the applicant
The court relied on the photographs produced by the respondent showing the subject parcel as bare and undeveloped. On that basis it found the applicant is not in occupation and therefore faces no danger of imminent substantial loss, a mandatory condition under Order 42 Rule 6(2) for granting stay pending appeal.
Security for due performance of the decree
The applicant furnished no security and her claim that the decree was not quantifiable did not suffice
Order 42 Rule 6(2) requires the applicant to furnish such security as the court orders for the due performance of the decree. The applicant offered none, arguing the decree was not monetary. The court held this did not excuse her and that a successful litigant should not be denied the fruits of judgment.
Legal principles established
#- An applicant for stay of execution must satisfy the conditions of substantial loss, lack of unreasonable delay and furnishing of security; failure to prove one dislodges the other
- It is not the duty of the court to deny a successful litigant the fruits of his or her judgment
Court orders
#- 1.The application dated 15th January, 2021 seeking stay of execution pending appeal is dismissed
- 2.Costs shall abide the event
- On appeal from
- Subordinate Court
- ELC Suit No. 8 of 2018
- Jurisdiction invoked
- Order 42 rule 6 and Order 51 of the Civil Procedure Rules 2010, section 3A Civil Procedure Act Cap 21 Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hindia Ibrahim Adan & another v Abdi Hassan Samatar [2021] KEELC 3608 (KLR)", Case Analysis (2021). ELC Suit No. 8 of 2018 (Stay of Execution Application dated 15th January, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3608/eng@2021-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.