Bildad Simiyu Khakina & 2 others v Henry Kerre Wakhungu & 2 others [2020] eKLR Case Summary

Court
Environment and Land Court at Bungoma
Category
Civil
Judge(s)
Hon. Boaz N. Olao
Judgment Date
October 15, 2020
Country
Kenya
Document Type
PDF
Number of Pages
2
Explore the case summary of Bildad Simiyu Khakina & 2 others v Henry Kerre Wakhungu & 2 others [2020] eKLR, detailing key legal principles and judgments that shaped the outcome.

Case Brief: Bildad Simiyu Khakina & 2 others v Henry Kerre Wakhungu & 2 others [2020] eKLR

1. Case Information:
- Name of the Case: Bildad Simiyu Khakina & Others v. Dr. Henry Kerre Wakhungu & Others
- Case Number: ELC Case No. 172 of 2014
- Court: Environment and Land Court at Bungoma
- Date Delivered: 15th October 2020
- Category of Law: Civil
- Judge(s): Hon. Boaz N. Olao
- Country: Kenya

2. Questions Presented:
The primary legal issue presented before the court was whether the Applicants (originally the defendants) should be granted a stay of execution of the judgment delivered on 27th May 2020, pending their appeal to the Court of Appeal.

3. Facts of the Case:
The Plaintiffs, Bildad Simiyu Khakina, Moses Khakina Wakhungu, and David Nyonges Wambilianga, initiated a suit against the Defendants, Dr. Henry Kerre Wakhungu, Dr. Phoebe Khasiala Wakhungu, and the District Land Registrar. Following the judgment delivered on May 27, 2020, which presumably favored the Plaintiffs, the Defendants filed a Notice of Appeal on May 28, 2020, expressing dissatisfaction with the ruling. The Defendants subsequently sought a stay of execution of the judgment, arguing that they would suffer irreparable loss if the execution proceeded before the appeal was heard.

4. Procedural History:
After the judgment was delivered, the Defendants filed a Notice of Appeal and a Motion for a stay of execution on June 4, 2020. The Plaintiffs opposed this application, arguing that it was defective and intended to delay the enforcement of the judgment. The application was considered by the court on August 4, 2020, where it was directed to be canvassed through written submissions. Ultimately, the application for a stay of execution was dismissed by the court.

5. Analysis:
- Rules: The court's authority to grant a stay of execution pending appeal is governed by Order 42 Rule 6(1) and (2) of the Civil Procedure Rules. To succeed, an applicant must demonstrate substantial loss, file the application without unreasonable delay, and offer security for the performance of the decree.
- Case Law: The court referenced *Vishram Ravji Halai v. Thornton & Turpin* (1990) KLR 365 and *Kenya Shell Ltd. v. Benjamin Kibiruu & Another* (1986) KLR 410, which emphasize the necessity of proving substantial loss to justify a stay of execution. Additionally, *Machira T/A Machira & Co Advocates v. East African Standard (No 2)* (2002) 2 KLR 63 indicated that mere assertions of loss are insufficient; specific details must be provided.
- Application: In applying the rules and case law, the court found that the Defendants failed to demonstrate the specific nature of the irreparable loss they would suffer. While they filed their application without unreasonable delay, they did not provide any offer of security as required. Consequently, the court concluded that the conditions for granting a stay of execution had not been met.

6. Conclusion:
The court ultimately dismissed the Defendants' application for a stay of execution, concluding that the Applicants had not established the necessary criteria under the Civil Procedure Rules. This ruling underscores the importance of meeting all conditions for a stay of execution, particularly the demonstration of substantial loss and the provision of security.

7. Dissent:
No dissenting opinions were noted in the ruling, as it was a singular judgment by Hon. Boaz N. Olao.

8. Summary:
The Environment and Land Court at Bungoma ruled against the Defendants' application for a stay of execution of a judgment favoring the Plaintiffs. The court found that the Defendants failed to prove substantial loss and did not offer any security, leading to the dismissal of their application. This case highlights the stringent requirements for obtaining a stay of execution in civil proceedings and the necessity for applicants to provide detailed evidence of potential loss.

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