Tikoishi Ole Nampaso & 2 others v Kipkurui Arap Langat & 11 others [2018] KEELC 349 (KLR)
The bottom line
#Kenya's High Court paused a land judgment's enforcement, but only because the losing defendants agreed to deposit Kshs.300,000 as security.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss and unreasonable delay under Order 42 rule 6(2)
The applicants demonstrated substantial loss (risk of eviction from suit properties they occupy since 1984) and filed the application without unreasonable delay, having filed a notice of appeal on 2nd May 2018
The court found the applicants had occupied the suit properties since 1984, constructed permanent houses, kept livestock and crops, and risked eviction by the plaintiffs, including an incident of intimidation with police officers on 17th August 2018. Notice of appeal was filed and served promptly, and an earlier application's dismissal due to counsel's lack of a practicing certificate did not amount to undue delay. The nugatory-appeal risk was thus established.
Security for due performance of the decree
Though the applicants did not offer security, the court exercised its discretion in their favour by ordering a deposit of Kshs.300,000 as security for costs as a condition of the stay
The court noted Peter Tesot had not stated whether the applicants would give any undertaking as to damages or security of costs. Recognising the provision is mandatory but that the court has discretion to order security, the judge conditioned the stay on a deposit of Kshs.300,000 within 45 days, guided by Peter Ondande t/a Spreawett Chemist v Josephine Wangari Karanja and Julius Musili Kyunga v Kenya Commercial Bank Ltd.
Legal principles established
#- Security as ordered by the court is a mandatory prerequisite to granting stay of execution pending appeal under Order 42 rule 6(2)(b)
Court orders
#- 1.That there be stay of execution of the judgment delivered on 19th April 2018 and all consequential orders pending the hearing and determination of the intended appeal on condition that the 1st-11th defendants/applicants do deposit Kshs.300,000 in court as security for costs within forty five (45) days from the date hereof.
- 2.That costs of this application be borne by the 1st-11th defendants/applicants.
- Jurisdiction invoked
- Order 42 rule 6(1), (2), (3) and (4) and Order 51 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tikoishi Ole Nampaso & 2 others v Kipkurui Arap Langat & 11 others [2018] KEELC 349 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/349/eng@2018-12-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.