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ELCDismissedNot stated in the extract provided

Paolo Da Fano v Oliva Rocco [2021] KEELC 3947 (KLR)

Environment and Land Court of Kenya
23 March 2021
2,213 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to pause payment orders against a property buyer who repeatedly ignored court conditions, ruling he showed no real loss.

What this practically means

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Executive summary

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By a Notice of Motion dated 25th November 2019, the Defendant Oliva Rocco sought suspension or stay of the Ruling and orders of 24th October 2019 pending appeal to the Court of Appeal. That Ruling had granted the Defendant conditional leave to amend his defence and introduce a counterclaim on condition that he pay 50% of outstanding instalment arrears of Euros 69,222.00, being Euros 34,611.00, within 30 days, failing which the application stood dismissed. The Defendant argued that execution would occasion substantial loss and render his appeal nugatory. The Plaintiff Paolo Da Fano opposed, pointing to the Defendant's persistent non-compliance with earlier conditional orders, including the order of 31st July 2018 requiring payment of 50% of monthly instalments, which was never fulfilled. Considering Order 42 Rule 6(2) of the Civil Procedure Rules and the settled authorities, the court held that the Defendant failed to establish substantial loss: there was no evidence the Plaintiff was a man of straw unable to refund the money, the Defendant continued residing in the suit property despite being in arrears, and a successful litigant is ordinarily entitled to the fruits of judgment absent exceptional circumstances. The court found the application dilatory, an abuse of the court process, and dismissed it with costs to the Plaintiff on 23rd March 2021.

Questions the Court framed

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

  1. 1.Whether the Defendant will suffer substantial loss if the order of 24th October 2019 (conditional leave to amend defence and introduce counterclaim) is not stayed pending appeal
  2. 2.Whether the application for stay was made without unreasonable delay
  3. 3.Whether the Defendant has furnished or offered security for the due performance of the decree
  4. 4.Whether the appeal would be rendered nugatory if stay is not granted

Key legal issues

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01

Whether the Defendant demonstrated substantial loss to warrant a stay of execution pending appeal

Holding

No substantial loss was demonstrated; the Plaintiff's ability to refund was not impugned and the Defendant remained in the suit property, so paying half the arrears would not occasion loss beyond the ordinary consequence of losing

Reasoning

The court applied Order 42 Rule 6(2) and the authorities requiring proof of substantial loss beyond the ordinary loss every judgment debtor suffers. The Defendant did not show the Plaintiff was a man of straw unable to refund the Euros 34,611.00 if the appeal succeeded. Further, the Defendant continued residing in the suit property despite arrears of Euros 69,222.00, and had only been asked to clear half pending resolution of the dispute, so the stay could not be justified.

p. 3
02

Whether the Defendant's application was an abuse of court process given his history of non-compliance with court orders

Holding

The application was dilatory and abusive; the Defendant had a history of failing to comply with conditional leave granted on 31st July 2018 and again on 24th October 2019

Reasoning

The court traced the Defendant's conduct: failure to file a defence for over a year, conditional leave to defend subject to paying 50% of monthly instalments which he did not fulfil, and a second application for amendment met with conditional leave to pay Euros 34,611.00 within 30 days which was again unfulfilled. Seeking stay of those conditions was viewed as an attempt to circumvent obligations and disobey court orders, justifying dismissal with costs.

p. 2

Legal principles established

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  • The jurisdiction to grant stay pending appeal under Order 42 Rule 6 is fettered by the conditions of sufficient cause, substantial loss and furnishing of security, and the application must be made without unreasonable delay
  • A successful litigant is entitled to the fruits of his judgment save in exceptional circumstances

Court orders

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  1. 1.The Defendant's Notice of Motion application dated 25th November 2019 seeking stay of the Ruling and orders of 24th October 2019 pending appeal is dismissed
  2. 2.Costs of the application awarded to the Plaintiff

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(2) of the Civil Procedure Rules

Relief refused

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Stay of the Ruling and orders dated 24th October 2019 pending the hearing and determination of the appeal filed therefrom

The Defendant failed to demonstrate substantial loss; the Plaintiff was not shown to be a man of straw incapable of refunding the decretal sum, and the Defendant continued to reside in the suit property while in arrears; the application was also an abuse of court process

p. 3

Costs

Dismissed with costs to the Plaintiff

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.

Arising from the foregoing, I am not persuaded that there is any merit in the Defendant’s application dated 25 th November 2019. It was filed in abuse of the Court process and must fail. I dismiss it with costs to the Plaintiff.
p. 3Final orders - dismissal of stay application with costs
the Court ought not to deny a successful litigant of the fruits of his Judgment save in exceptional circumstances where to decline to do so may well amount to stifling the right of the unsuccessful party to challenge the decision in the higher Court.
p. 3General rule on stay of execution
No order for stay of execution shall be made under sub rule (1) unlessthe Court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay
p. 2Statutory conditions for stay pending appeal
Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented.
p. 2Centrality of substantial loss in stay applications

Issues in the judgment

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minor

The extracted judgment does not state the suit's case number or the prayers 1 and 2 of the Notice of Motion, which are elided in the 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, "Paolo Da Fano v Oliva Rocco [2021] KEELC 3947 (KLR)", Case Analysis (2021). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3947/eng@2021-03-23

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