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ELCPartially Allowed· [2018] KEELC 349 (KLR)

Tikoishi Ole Nampaso & 2 others v Kipkurui Arap Langat & 11 others [2018] KEELC 349 (KLR)

High Court of Kenya
13 December 2018
1,202 words in judgment
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The bottom line

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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

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Executive summary

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This ruling determines a Notice of Motion dated 17th September 2018 by the 1st-11th defendants seeking stay of execution of a judgment delivered on 19th April 2018 in favour of the plaintiffs, pending an intended appeal. The application was brought under Order 42 rule 6 and Order 51 of the Civil Procedure Rules, supported by affidavits of the 2nd defendant, Peter Tesot, and the defendants' advocate, Johnson Mitey, and opposed by a replying affidavit of the 1st plaintiff, Tikoishi Ole Nampaso. The applicants contended they had occupied the suit properties since 1984, had built permanent homes and kept livestock and crops, faced threatened eviction (including an incident with police on 17th August 2018), and that the appeal would be rendered nugatory without a stay. They had filed a notice of appeal and requested typed proceedings promptly. The court applied the Order 42 rule 6(2) conditions: it found substantial loss shown by the risk of eviction, no unreasonable delay notwithstanding an earlier failed application prosecuted by counsel lacking a current practicing certificate, and that an appeal is deemed filed upon notice of appeal under rule 6(4). Although the applicants had not offered security, the court exercised its discretion to order security of Kshs.300,000 as a condition of stay. Guided by Peter Ondande and Julius Musili Kyunga, the court granted a stay of the judgment and consequential orders pending appeal, conditional on the deposit of Kshs.300,000 within 45 days, and awarded costs of the application to the defendants/applicants.

Key legal issues

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01

Substantial loss and unreasonable delay under Order 42 rule 6(2)

Holding

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

Reasoning

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.

p. 2
02

Security for due performance of the decree

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.That costs of this application be borne by the 1st-11th defendants/applicants.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6(1), (2), (3) and (4)
  • Civil Procedure Rules, 2010Order 51

Cases cited (2)

  • Peter Ondande t/a Spreawett Chemist vs Josephine Wangari Karanja
    (2006) eKLR
  • Julius Musili Kyunga vs Kenya Commercial Bank Ltd & Another
    [2012] eKLR
Jurisdiction invoked
Order 42 rule 6(1), (2), (3) and (4) and Order 51 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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Cite this brief

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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.