Schering v Said & 2 others (Environment & Land Case 144 & 299 of 2021 (Consolidated)) [2024] KEELC 5826 (KLR)
The bottom line
#The court extended a stay of execution of a land judgment, but only temporarily and on condition that the defendant deposits property titles as 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 Applicant is deserving of an extension of the stay of execution orders earlier granted
- 2.Whether the Applicant is entitled to issuance of copies of the decree and certificate of delay
- 3.Whether the application was made without unreasonable delay
- 4.Whether substantial loss may result to the Applicant unless stay is granted
- 5.What security, if any, should be given for due performance of the decree
Key legal issues
#Substantial loss
The applicant feared the Respondent would dispose of the properties and leave jurisdiction, but foreign nationality alone is insufficient; recovery is achievable since the subject properties are known
The court observed that recovery of the suit properties would be secured by orders of the Court of Appeal which must be obeyed, and that the applicant failed to prove the plaintiff would leave jurisdiction merely because he is a foreigner. However, balancing the decree holder's enjoyment of judgment against the defendant's undoubted right of appeal, and noting the plaintiff retains possession, the court found no undue hardship to the respondent in granting conditional stay.
Unreasonable delay
Filing slightly over two months after judgment was not inordinate delay given the circumstances
The application was filed on 9th July 2024 after proceedings were furnished on 21st June 2024. The court accepted that the entire Kwale Court is served by one administrative assistant and that a Memorandum of Appeal requires the full proceedings, not just the judgment. Filing slightly over two months after judgment was therefore not rendered an inordinate delay.
Security
Deposit of the two titles suffices as security pending the Court of Appeal's hearing of the application
Guided by Jamii Bora Bank and Arun C. Sharma, the court held that the issue of security is for the court to determine though an applicant may suggest what it offers. As the applicant was ready to surrender the titles to Kwale/Galu/Kinondo 2458 and 2459, the court found deposit of the two titles sufficient pending the Court of Appeal application, and ordered lapse of its orders upon that determination.
Legal principles established
#- Grant of stay of execution is discretionary and requires substantial loss, absence of unreasonable delay, and security
- A foreign nationality of a decree holder alone does not establish risk of leaving jurisdiction; the applicant must demonstrate it
Court orders
#- 1.Extension of the orders of stay of execution in terms of the orders made on 12/04/2024
- 2.Stay of execution of the judgement delivered on 12/04/24 and decree pending hearing and determination of the application filed at the Court of Appeal (Msa COAAPPL/E076/24
- 3.The Applicants shall deposit with the Court the titles for properties Kwale/Galu/Kinondo 2458 and 2459 as security within 30 days of the order
- 4.The orders shall automatically lapse upon determination of the Court of Appeal application, and the orders of the Court of Appeal therein shall kick in
- 5.Costs of the application to be costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act
Relief refused
#Indefinite stay pending appeal
Court limited its orders to lapse automatically upon determination of the Court of Appeal application, deferring to the Court of Appeal
Costs
The costs of this application to be costs in 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.
1. There be an extension of the orders of stay of execution in terms of the orders made on 12/04/2024.
2. There be stay of execution of the judgement delivered on 12/04/24 and decree pending hearing and determination of the application filed at the Court of Appeal (Msa COAAPPL/E076/24.
3. The Applicants shall deposit with the Court the titles for properties Kwale/Galu/Kinondo 2458 and 2459 as security within 30 days of this order.
5. The costs of this application to be costs in the appeal.
I think the filing of the application in slightly over two months after the judgement cannot be rendered an inordinate delay given the circumstances of this case.
It was incumbent upon the applicant to demonstrate that the Plaintifi will leave jurisdiction which to me has not been successfully proved.
Issues in the judgment
#Judgment renders inconsistent references to the Court of Appeal filings - replying affidavit describes two appeals, further affidavit clarifies one appeal and one application; appeal numbers inconsistently cited as 'E127 of 2014' and 'E127 of 2024'
Replying affidavit not struck out despite complaint about the Commissioner for Oaths; it was replaced with an identical affidavit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Schering v Said & 2 others (Environment & Land Case 144 & 299 of 2021 (Consolidated)) [2024] KEELC 5826 (KLR)", Case Analysis (2024). Application dated 9th July 2024 (ELC, Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5826/eng@2024-08-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.