Joseph Kibet Tuwei v Lydia Jemaiyo Too & another [2015] KEELC 71 (KLR)
The bottom line
#The Eldoret Environment and Land Court refused to halt execution of a land judgment because the applicant only claimed she would suffer loss without proving it.
What this practically means
#Executive summary
#Key legal issues
#Whether a pending appeal existed given only a Notice of Appeal had been lodged
A notice of appeal is deemed an appeal unless struck out; the notice lodged in the Court of Appeal registry constituted a pending appeal
The court rejected the respondents' argument that the absence of a filed memorandum of appeal meant there was no appeal. It relied on Rule 81 of the Court of Appeal Rules, which extends the sixty-day institution period where proceedings have been requested, and found the applicant had applied for typed proceedings which had not been supplied. The respondents' contrary argument was held to be a misapprehension of the law.
Whether the application was made without unreasonable delay
There was no unreasonable delay; the application was filed within 13 days of judgment and 7 days of the Notice of Appeal
Judgment was delivered on 27th November 2014 and the application was dated 10th December 2014. The court measured the interval from both the judgment and the lodging of the Notice of Appeal and found the delay neither inordinate nor unreasonable, satisfying the first limb of Order 42 rule 6(2)(a).
Whether the applicant demonstrated substantial loss
The applicant failed to demonstrate substantial loss; mere assertion is insufficient and the burden of proof lies on the applicant
The applicant claimed loss of stamp duty and risk from having exchanged the parcels to a third party, but none of this was proven. Further, since the court had ordered the property to revert to a deceased intestate owner, the applicant would have an opportunity to contest her interest in the succession cause. She also did not show the respondent lacked means to compensate her if the appeal succeeded. The stay conditions were therefore not met.
Legal principles established
#- A notice of appeal is deemed an appeal unless struck out by the court
- The burden lies on the applicant for stay to demonstrate substantial loss, not merely to assert it
- For stay of execution, the applicant must show a pending appeal, no unreasonable delay, substantial loss, and provide security for due performance of the decree
Court orders
#- 1.The application dated 10th December, 2014 for stay of execution is dismissed with costs
- On appeal from
- High Court / trial court (first-instance suit)
- null
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kibet Tuwei v Lydia Jemaiyo Too & another [2015] KEELC 71 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/71/eng@2015-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.