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ELCAllowedNot stated in judgment (application pending Eldoret Court of Appeal No. 23 of 2015)· [2016] KEELC 1079 (KLR)

Fredrick Makokha v Peter Sifuna Wasina & 2 others [2016] KEELC 1079 (KLR)

Environment and Land Court
9 March 2016
SMS. Mukunya
312 words in judgment
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The bottom line

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Kenya's Environment and Land Court paused execution of a land judgment because evicting family members from ancestral land before their appeal is heard causes unnecessary harm.

What this practically means

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Executive summary

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The applicant moved the Environment and Land Court at Bungoma under Sections 1A, 3, 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, seeking a stay of execution of the decree pending the determination of Eldoret Court of Appeal No. 23 of 2015. The application was supported by an affidavit of Francis Makokha, who deponed that the applicant was in occupation of the land, that the appeal had high chances of success, and that the appeal would be rendered nugatory if stay was refused. The respondent opposed the application through an affidavit of Maketa Waswa sworn on 15 November 2015, contending that the conditions for stay had not been established, that no substantial loss had been demonstrated, and that as the applicants were already in occupation they would suffer no prejudice. Judge S. Mukunya observed that the parties are all relatives and that the suit land is ancestral land belonging to their father, occupied by some of them. The court found it undisputed that an appeal was pending before the Court of Appeal at Eldoret and that a judgment existed which might be executed against the applicants, disturbing their current occupation of the land. On the balance of convenience, the court ordered a stay of execution of the decree pending the hearing of the appeal, holding that the respondents would suffer no prejudice by waiting, and directed that the costs of the application abide the outcome of the appeal.

Key legal issues

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01

Entitlement to stay of execution pending appeal

Holding

Stay granted because the appeal is pending, execution would disturb the applicants' occupation of the suit land, and the respondents would suffer no prejudice.

Reasoning

The court found it undisputed that an appeal was pending before the Court of Appeal at Eldoret and that a judgment existed which might be executed against the applicants. Execution would disturb their current occupation of the ancestral family land occupied by some of the parties. The parties are relatives and the respondents would suffer no prejudice from waiting, so on the balance of convenience stay was warranted.

p. 2

Legal principles established

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  • Where a judgment might be executed in a manner that would disturb the current occupation of the applicants on ancestral family land, and the appeal is pending, the balance of convenience favours a stay of execution pending appeal.

Court orders

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  1. 1.Stay of execution of the decree pending the hearing and determination of the appeal in the Court of Appeal at Eldoret
  2. 2.Costs of the application to abide the outcome of the appeal
On appeal from
Court of Appeal
Eldoret Court of Appeal No. 23 of 2015
Jurisdiction invoked
Sections 1A, 3, 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6(1) and (2) of the Civil Procedure Rules

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, "Fredrick Makokha v Peter Sifuna Wasina & 2 others [2016] KEELC 1079 (KLR)", Case Analysis (2016). Not stated in judgment (application pending Eldoret Court of Appeal No. 23 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1079/eng@2016-03-09

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