Automated Summary
Key Facts
The Environment and Land Court at Vihiga granted a stay of execution for the judgment evicting the appellant from land parcel W/Bunyore/Essaba/2076 'A', pending the appeal. The stay is conditional on the appellant depositing Kshs 100,000 as security within 45 days. The ruling was delivered on 12 June 2025 by E Asati, J.
Issues
- The court referenced the precedent from Shell Kenya Ltd v Benjamin Karuga Kibiru [1986] eKLR 410, which establishes that a stay of execution is justifiable if it prevents an appeal from becoming ineffective, as the appellant's eviction would render the appeal nugatory.
- The court considered whether to stay the execution of a judgment ordering the appellant's eviction from the disputed land parcel while the appeal is pending, balancing the risk of irreparable loss against the requirement for security deposits as per civil procedure rules.
- The court evaluated the appellant's compliance with Order 42 Rule 6(2) of the Civil Procedure Rules 2010, which mandates security deposits to prevent financial loss to the respondent if the appeal fails, requiring the appellant to deposit Kshs 100,000 within 45 days.
Holdings
- Costs of the application to the Respondent.
- An order of stay of execution of the judgement and decree delivered on 27th February 2025 in Vihiga SPM ELC Case No E010 of 2022 is hereby granted on condition that the applicant deposits in court the sum of Kenya shillings one hundred thousand only (Kshs 100,000/=) being security within 45 days hereof failing which the order of stay of execution herein granted shall lapse.
Remedies
- Costs of the application to the Respondent.
- An order of stay of execution of the judgement and decree delivered on 27th February 2025 in Vihiga SPM ELC Case No E010 of 2022 is hereby granted on condition that the applicant deposits in court the sum of Kenya shillings one hundred thousand only (Kshs 100,000/=) being security within 45 days hereof failing which the order of stay of execution herein granted shall lapse.
Legal Principles
The court applied Order 42 Rule 6(2) of the Civil Procedure Rules 2010, requiring satisfaction of two conditions for granting a stay of execution: (a) substantial loss to the applicant if the order is not made, and (b) provision of security as ordered. The principle was further supported by the case of Shell Kenya Ltd v Benjamin Karuga Kibiru [1986] eKLR 410, which established that a stay can be granted if execution would render an appeal nugatory.
Precedent Name
Shell Kenya Ltd v Benjamin Karuga Kibiru & Another
Cited Statute
- Civil Procedure Act
- Constitution of Kenya 2010
- Civil Procedure Rules
Judge Name
E Asati
Passage Text
- No order for stay of execution may be made under sub rule (1) unless- a. The 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 and b. Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.
- i. An order of stay of execution of the judgement and decree delivered on 27th February 2025 in Vihiga SPM ELC Case No E010 of 2022 is hereby granted on condition that the applicant deposits in court the sum of Kenya shillings one hundred thousand only (Kshs 100,000/=) being security within 45 days hereof failing which the order of stay of execution herein granted shall lapse.
- "if it is shown that execution would render a proposed appeal nugatory then a stay can properly be granted."