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ELCDismissedNot stated in judgment (application dated 9th February 2015)· [2015] KEELC 603 (KLR)

Setabau & 10 others v Kedong Ranch Limited (Civil Suit 21 of 2010) [2015] KEELC 603 (KLR)

Environment and Land Court
19 February 2015
MSMunyao Sila
347 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause a land judgment because the applicants' lawyer, not the applicants themselves, swore the supporting affidavit.

What this practically means

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Executive summary

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The Environment and Land Court at Nakuru (Munyao Sila J) ruled on a notice of application dated 9th February 2015 in which the applicants sought a stay of the court's judgment pending the filing of an application for stay pending appeal before the Court of Appeal. Counsel Mr Otieno urged the application, supported by an affidavit of Mr Willis Evans Otieno, himself counsel for the applicants; Mr Kadima opposed on behalf of the respondent. The court observed that the applicants could have sought stay pending appeal under Order 42 Rule 6 within the court itself, but deliberately elected to pursue the Court of Appeal, seeking only an interim stay in the meantime. The court found the application fatally flawed in its support: the supporting affidavit deponed to matters of fact - such as who is in possession of the property and what loss might be suffered absent a stay - that only the applicants themselves could properly attest to. The application was therefore held not to be supported by an appropriate affidavit. The court dismissed the application with costs to the respondent, while noting that the applicants remained free to apply to the Court of Appeal for stay. Judgment was delivered in open court at Nakuru on 19th February 2015.

Key legal issues

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01

Proper support of a stay application by affidavit

Holding

The application failed because it was supported by counsel's affidavit deponing facts personal to the applicants

Reasoning

The court held that facts such as who is in possession of the suit property and what loss may be suffered if stay is not granted are matters that only the applicants themselves can properly depone to. An affidavit by counsel on such matters renders the application unsupported by an appropriate affidavit, justifying dismissal.

p. 2
02

Interim stay pending a stay application in the Court of Appeal

Holding

The court declined to grant an interim stay where the applicants wished to pursue stay before the Court of Appeal rather than this court

Reasoning

The applicants had leeway under Order 42 Rule 6 to seek stay pending appeal in the court itself, but chose instead to pursue the Court of Appeal, asking only for an interim stay in the meantime. The court, not persuaded this was a fit case, declined the interim relief and left the applicants free to apply to the Court of Appeal.

p. 2

Legal principles established

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  • An application for interim stay must be supported by an affidavit of the party applicant, not counsel, where facts such as possession and potential loss are personal to the party

Court orders

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  1. 1.The application dated 9th February 2015 is dismissed
  2. 2.Costs of the application awarded to the respondent
  3. 3.Leave given to the applicants to still apply to the Court of Appeal for stay

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (referenced as the applicants' avenue for stay pending appeal in this court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Setabau & 10 others v Kedong Ranch Limited (Civil Suit 21 of 2010) [2015] KEELC 603 (KLR)", Case Analysis (2015). Not stated in judgment (application dated 9th February 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/603/eng@2015-02-19

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