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ELCPartially Allowed· [2018] KEELC 364 (KLR)

Felix Kipchoge Limo Langat v Robinson Kiplagat Tuwei [2018] KEELC 364 (KLR)

High Court of Kenya
19 December 2018
1,319 words in judgment
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The bottom line

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The High Court in Eldoret paused enforcement of a land judgment, but only because the losing party agreed to deposit the land title in court within 30 days.

What this practically means

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Executive summary

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This ruling by the High Court at Eldoret (M. A. Odeny, J) determined a Notice of Motion dated 12th September 2018 by the defendant seeking stay of execution of the judgment and decree pending an intended appeal to the Court of Appeal, including a stay of registration, dealings or subdivision over land parcel Mogobich/Cheptililik/Block 1 (Kipsembwo)/225. The application was governed by Order 42 Rule 6(2) of the Civil Procedure Rules, whose conditions the court distilled as absence of unreasonable delay, substantial loss, and an undertaking as to security. On delay, the application was filed on 14th September 2018 following judgment delivered on 6th September 2018 and was held to be without unreasonable delay. On substantial loss, the court rejected counsel's assertion that the defendant was in occupation, observing that judgment had been entered on a finding that the plaintiff was in occupation and that re-arguing that finding was like arguing an appeal before a functus officio court. However, the court found that substantial loss extended beyond monetary terms to the inconvenience of subdividing and transferring the land and possibly having to retransfer it if the appeal succeeded. On security, the defendant offered the title to the suit land, which the court accepted. The court balanced the applicant's interests against the victorious plaintiff's right to enjoy the fruits of judgment, and granted a conditional stay: the defendant was to deposit the title in court within 30 days and not interfere with the character of the land until the appeal is determined, failing which the stay lapses.

Key legal issues

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01

Unreasonable delay

Holding

The application filed 8 days after judgment was made without unreasonable delay.

Reasoning

Judgment was delivered on 6th September 2018 and the application filed on 14th September 2018, a short interval the court found satisfied the delay requirement of Order 42 Rule 6(2)(a).

p. 2
02

Substantial loss

Holding

Substantial loss was demonstrated notwithstanding the applicant's incorrect claim to be in occupation.

Reasoning

The court rejected counsel's assertion that the defendant was in occupation, since judgment had been entered on a finding that the plaintiff was in occupation; re-litigating that finding was akin arguing an appeal before a functus officio court. Nevertheless, the inconvenience of subdividing, transferring and possibly retransferring the suit land constituted substantial loss beyond monetary terms.

p. 2
03

Security for due performance of the decree

Holding

The title to the suit land, to be deposited in court, suffices as security.

Reasoning

Counsel for the applicant undertook to provide security, noting the title was available. As the case involved land to which the defendant held title, the court accepted deposit of the title document in court within 30 days as security, with non-interference with the land's character until the appeal is determined.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must establish that the application was made without unreasonable delay, that substantial loss may result unless stay is granted, and that security for due performance of the decree will be given.
  • Substantial loss is the cornerstone of the jurisdiction to grant stay and is not confined to monetary loss.

Court orders

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  1. 1.Stay of execution of the judgment and decree granted, conditional upon the defendant depositing the title to the suit land in court within 30 days
  2. 2.The defendant not to interfere with the character of the land until the intended appeal is heard and determined
  3. 3.Failure to adhere to the condition causes the stay order to lapse

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 41 Rule 4

Cases cited (3)

  • Malcom Bell v Daniel Toroitich Arap Moi & Another
    [2006] eKLR
  • Kenya Shell Limited vs Benjamin Karuga Kigibu & Another
    (1982-1988) 1 KAR 1018
  • Andrew Kuria Njuguna Versus Rose Kuria
    NBI Civil Case No. 2 of 2001
Jurisdiction invoked
Order 42 Rule 6(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, "Felix Kipchoge Limo Langat v Robinson Kiplagat Tuwei [2018] KEELC 364 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/364/eng@2018-12-19

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