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ELCPartially AllowedNot stated in the judgment as provided

Mary Wanjiku v Plaintiff/Respondent (Stay of Execution Pending Appeal)

High Court of Kenya
31 October 2024
AOA. Omollo
960 words in judgment
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The bottom line

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The High Court paused execution of a judgment over a disputed property, protecting the defendant's rental income until her appeal is heard.

What this practically means

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Executive summary

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This ruling by A. Omollo J of the High Court at Nairobi, dated 31st October 2024, determined two applications by the Defendant/Applicant, Mary Wanjiku, dated 13th and 20th May 2024, seeking temporary injunction and stay of execution of a decree pending her appeal against a High Court judgment delivered on 25th April 2024, which restrained her from remaining on, entering, occupying or residing on the suit property. The underlying suit concerned ownership of the property registered in the name of the deceased, with whom the Applicant lived and had children; the Respondent was awarded 50% of the property and 50% of mesne profits. The Respondent opposed stay, contending the Applicant was not in possession since a tenant, Cynthia Njeri Njoroge, occupied the property paying Kshs.70,000 monthly rent to the Applicant, contradicting her earlier claim that the property was not rented. Both parties agreed the governing provision was Order 42 rule 6(2). The court held it need not assess the appeal's arguability, an appeal being deemed filed on giving notice of appeal under rule 6(4). On substantial loss, it found the Applicant retained a 50% interest via the deceased's estate and received rental income whose loss would not be trivial. Balancing the Respondent's right to the fruits of judgment against the Applicant's appellate rights, the court granted stay on condition that all monthly rental income be deposited into an interest-bearing account in the joint names of both advocates, opened within 30 days, deposits running from December 2024 until the appeal is determined. Each party was ordered to bear their own costs.

Questions the Court framed

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

  1. 1.Whether the Applicant has met the conditions for grant of stay of execution under Order 42 rule 6(2) pending her appeal
  2. 2.Whether temporary injunction should issue
  3. 3.What security, if any, should be furnished as a condition for stay

Key legal issues

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01

Conditions for stay of execution under Order 42 rule 6(2)

Holding

Stay was granted; the applicant showed substantial loss given her interest in the suit property and its rental income, and security was fixed by directing rental deposits into a joint interest-bearing account

Reasoning

The court applied Order 42 rule 6(2), holding that an appeal is deemed filed upon giving notice of appeal under rule 6(4). On substantial loss, it found the applicant has an interest in the property since the respondent was awarded only 50%, the other half belonging to the deceased's estate, and the applicant receives monthly rent of Kshs.70,000. Loss of that income would not be trivial. Willingness to furnish security was satisfied by directing the rental income into a joint interest account held by both advocates. The respondent's right to enjoy the judgment was balanced against the applicant's right to pursue appeal.

p. 2
02

Whether the court must assess the arguability of the intended appeal

Holding

The court is not required to determine the suitability of the appeal for purposes of stay under Order 42 rule 6

Reasoning

Both parties agreed stay is governed by Order 42 rule 6(2), one condition being an arguable appeal. The court held that it need not delve into the merits, noting rule 6(4) deems an appeal filed once notice of appeal is given under the Court of Appeal Rules. Since a notice of appeal dated 6th May, 2024 had been lodged, the appeal condition was treated as satisfied without assessing its merits.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal, requiring a balancing of the respondent's right to the fruits of judgment and the applicant's appeal prospects

Court orders

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  1. 1.The application for stay of execution is granted pending the determination of the Applicant's appeal
  2. 2.The entire monthly rental income from the suit property shall be deposited in an interest account to be opened in the joint names of the advocates for the parties, to be opened within 30 days, with rental deposits commencing in December, 2024 until the Applicant's appeal is determined
  3. 3.Each party to bear their costs of the appeal

The bench

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

AO
majority

Wrote the judgment

On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Order 42 rule 6(2) and (4) of the Civil Procedure Rules, in respect of a Notice of Appeal dated 6th May, 2024 lodged in the Court of Appeal

Relief refused

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Temporary injunction (sought in the applications alongside stay)

The court in conclusion granted only the application for stay; no injunction order was made

p. 3

Costs

Each party to bear their costs of the appeal.

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, the application for stay is granted. Each party to bear their costs of the appeal.
p. 3Final orders - stay granted and costs
I direct that the entire monthly rent rental income shall be deposited in an interest account to be opened in the joint names of the advocates for parties.
p. 3Security for stay
The possibility that substantial loss will occur if an order of stay of execution is not granted is the cornerstone of the jurisdiction of court in granting stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules.
p. 2Substantial loss as cornerstone of stay jurisdiction
For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
p. 2Deemed filing of appeal under Order 42 rule 6(4)

Issues in the judgment

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minor

The judgment uses inconsistent party descriptions - 'Plaintifi/Respondent' versus 'Plaintiff' - and refers to the deceased as 'Karuge – deceased' without full identification of parties or case number

minor

The judgment concludes 'Each party to bear their costs of the appeal' although this is a first-instance application, not an appeal; and the heading refers to applications for 'temporary injunction and or stay' but only stay is disposed of

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, "Mary Wanjiku v Plaintiff/Respondent (Stay of Execution Pending Appeal)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7477/eng@2024-10-31

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