Florence Namachitu & another v Doris Wanyama [2020] eKLR Case Summary

Court
Environment and Land Court at Bungoma
Category
Civil
Judge(s)
Boaz N. Olao
Judgment Date
October 15, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Florence Namachitu & another v Doris Wanyama [2020] eKLR. Understand key rulings and legal implications in this influential judgment.

Case Brief: Florence Namachitu & another v Doris Wanyama [2020] eKLR

1. Case Information:
- Name of the Case: Florence Namachitu & Ronald Kerre v. Doris Wanyama
- Case Number: ELC Appeal Case No. 12 of 2020 (formerly Bungoma H.C.C.A No. 52 of 2020)
- Court: Environment and Land Court at Bungoma
- Date Delivered: 15th October 2020
- Category of Law: Civil
- Judge(s): Boaz N. Olao
- Country: Kenya

2. Questions Presented:
The court must resolve whether to grant a stay of execution of a decree in Bungoma CMCC No. 85 of 2018 pending the hearing and determination of Civil Appeal No. 52 of 2020, based on the criteria set out in Order 42 Rule 6 of the Civil Procedure Rules.

3. Facts of the Case:
The appellants, Florence Namachitu and Ronald Kerre, sought to appeal a decision made in the lower court regarding a land dispute involving a parcel of land, NO EAST BUKUSU/SOUTH KANDUYI/8863, which is registered in the name of the respondent, Doris Wanyama, and her children. The appellants claimed that the trial court had denied their oral application for a stay of execution during a ruling on the assessment of costs, which they argued was unjust. They contended that unless a stay was granted, their appeal—which they believed had a high chance of success—would be rendered futile.

4. Procedural History:
The application for a stay of execution was filed on 14th August 2020 and was initially presented to Judge Musyoka, who declined to hear it due to a lack of jurisdiction. The application was then placed before Judge Boaz N. Olao on 30th September 2020, who directed that it be determined based on the affidavits provided by both parties. The respondent opposed the application, asserting that it was frivolous, had been overtaken by events, and that the appellants had not demonstrated any substantial loss.

5. Analysis:
- Rules: The court considered Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, which stipulates that a stay of execution may be granted if the applicant shows substantial loss may result if the stay is not granted, the application is made without unreasonable delay, and security for the due performance of the decree is provided.
- Case Law: The court referenced the case of *Kenya Shell Ltd v. Benjamin Kibirui* and *Machira T/A Machira & Co Advocates v. East African Standard (No 2)*. In these cases, the courts emphasized the necessity for the applicant to demonstrate specific details of the substantial loss they would incur if the stay were denied. The absence of such evidence typically leads to the denial of a stay.
- Application: The court found that while the appellants claimed potential substantial loss from eviction, they failed to prove specific details of this loss. Furthermore, the court noted that the application was made three months after the judgment, which constituted unreasonable delay without any explanation. The appellants also did not furnish any security for the performance of the decree, as required by the rules.

6. Conclusion:
The court dismissed the Notice of Motion dated 14th August 2020, concluding that the appellants did not meet the necessary criteria for granting a stay of execution. The ruling emphasized the importance of adhering to procedural requirements within civil litigation, particularly concerning timely applications and the provision of security.

7. Dissent:
There is no dissenting opinion noted in this case.

8. Summary:
The Environment and Land Court at Bungoma ruled against the appellants, Florence Namachitu and Ronald Kerre, in their application for a stay of execution pending appeal. The court found that they had failed to demonstrate substantial loss, did not file their application without unreasonable delay, and did not provide required security. This ruling underscores the court's adherence to procedural rules and the need for appellants to substantiate their claims adequately when seeking a stay of execution.

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