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ELCPartially AllowedNot stated in judgment· [2014] KEELC 203 (KLR)

Thomas Kiplel Sum v Philip Kipkorir Samich & 3 others [2014] KEELC 203 (KLR)

Environment and Land Court
24 September 2014
MSMunyao Sila
1,186 words in judgment
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The bottom line

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A Kenyan court threw out a stay request because it was filed late, clearing the way for eviction of occupants from the land.

What this practically means

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Executive summary

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The court dealt with two applications heard together: the plaintiff's application dated 29 January 2014 seeking eviction of the defendants from the suit lands (Uasin Gishu/Tapsagoi Settlement Scheme/929, 981 and 982), and the defendants' application dated 10 February 2014 seeking stay of execution pending appeal. The underlying suit had been decided on 7 November 2013 in favour of the plaintiff, who held that he had granted the defendants only a revocable licence, while the defendants claimed occupancy under a sale agreement. The defendants were ordered to vacate by 31 December 2013 but did not do so. On the stay application, the court identified the three requirements under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010: substantial loss, security, and filing without unreasonable delay. Although accepting that substantial loss might be occasioned to the defendants, the court found the application filed about 40 days after the vacation deadline, and rejected the explanations of the festive season and a change of lawyers as good reasons for the delay. The stay application was dismissed solely on the ground of unreasonable delay. The eviction application was then allowed: the defendants were ordered to vacate forthwith, failing which the plaintiff could engage a court bailiff to effect eviction within 7 days, with the OCS Turbo Police Station to provide security. The defendants were ordered to bear the costs of both applications and the costs of eviction.

Key legal issues

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01

Whether the application for stay pending appeal was filed without unreasonable delay

Holding

The application was filed about 40 days after the date the defendants were to have vacated the suit land, without good explanation, amounting to unreasonable delay

Reasoning

Judgment was delivered on 7 November 2013 with vacating deadline of 31 December 2013. The stay application was filed on 10 February 2014, about 40 days after the deadline. The explanations offered - the festive season and a change of lawyers - were rejected as insufficient. The applicant had a duty to move with speed to protect its occupation rights, and failure to do so disentitled it to stay despite possible substantial loss.

p. 2
02

Whether the plaintiff was entitled to eviction following the defendants' failure to vacate

Holding

The eviction application was allowed since the days given for vacating had long lapsed and there was no reason to refuse it

Reasoning

The judgment of 7 November 2013 ordered the defendants to vacate by 31 December 2013. Having dismissed the stay application, the court found no reason to refuse the eviction application, and ordered immediate vacation, with a court bailiff to effect eviction if the defendants did not leave within 7 days, and police security for the bailiff.

p. 3

Legal principles established

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  • Delay in applying for stay is assessed on the surrounding circumstances, and even one day after judgment can amount to unreasonable delay depending on the nature of the judgment
  • A change of advocates is not a good reason to excuse delay in applying for stay

Court orders

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  1. 1.Dismissed the defendants' application dated 10 February 2014 for stay of execution pending appeal
  2. 2.Allowed the plaintiff's application dated 29 January 2014 for eviction
  3. 3.Ordered the defendants to forthwith vacate the suit properties Uasin Gishu/Tapsagoi Settlement Scheme/929, 981 and 982
  4. 4.Ordered that if the defendants do not leave within 7 days, the plaintiff may engage a court bailiff to effect eviction
  5. 5.Ordered the OCS Turbo Police Station to provide security to the court bailiff
  6. 6.Directed that the defendants bear the costs of both applications and any costs of eviction

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rules 6(2) and 6(4)
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit lands; applications under Order 42 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Thomas Kiplel Sum v Philip Kipkorir Samich & 3 others [2014] KEELC 203 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/203/eng@2014-09-24

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