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ELCOtherApplication dated 23.2.2018 in Petition No. 4 of 2013· [2018] KEELC 2131 (KLR)

Richard Kipkemboi Limo v Hassan Kipkemboi Ngeny & 4 others [2018] KEELC 2131 (KLR)

Environment and Land Court
30 July 2018
3,864 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 execution of a land judgment because the applicant only feared eviction instead of proving real, evidence-backed loss.

What this practically means

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Executive summary

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The petitioner, who lost his suit in Petition No. 4 of 2013 by a judgment delivered on 9 February 2018, applied on 23 February 2018 for a stay of execution of the resulting decree pending an appeal he had lodged in the Court of Appeal. He relied on the affidavit of Richard Kipkemboi Limo, citing risk of forceful eviction, rendering of the appeal nugatory, absence of delay and willingness to furnish security. The 1st respondent, Hassan Kipkemboi Ngeny, opposed the application in grounds of opposition and a replying affidavit, contending that no substantial loss had been demonstrated, that he was a 77-year-old senior citizen entitled to enjoy the fruits of his judgment under Article 40 of the Constitution, and that the property was prime undeveloped commercial land valued at Kshs.80,000,000 with potential annual rent of Kshs.33,000,000; he proposed security of about Kshs.222,000,000 if stay were granted. Applying Order 42 Rule 6 of the Civil Procedure Rules and the established case law, the court found the application timely and security offered, but held that substantial loss had not been proved - the applicant had annexed no leases, valuation report or particulars of income from the land, and fear of eviction alone is not substantial loss. The court declined the stay but, in the special circumstances of the case, restrained all parties from utilizing the parcel of land in any way until the appeal is determined, with costs of the application to the applicant.

Key legal issues

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01

Whether substantial loss was demonstrated

Holding

No; the applicant alleged loss but produced no material evidence - no valuation report, leases, or particulars of rent or income from the property

Reasoning

The court examined the supporting affidavit and found no material before it to establish substantial loss. The applicant claimed development and leasing of the land but did not annex leases or state the rent or income generated. Fear of eviction alone does not constitute substantial loss; execution is a lawful process and the applicant must show a state of affairs that would irreparably affect him.

p. 3
02

Whether the application was brought without unreasonable delay

Holding

Yes; the application was filed timeously

Reasoning

Judgment was delivered on 9.2.2018 with a 15-day stay; the notice of appeal was filed on 21.2.2018 and the application on 23.2.2018. The court found no inordinate delay.

p. 3
03

Whether security was offered

Holding

Yes; the applicant offered security, satisfying that requirement

Reasoning

The applicant stated readiness to provide security, and the court accepted there was an offer of security coming from the applicant in satisfaction of the requirement, though this alone could not cure failure to prove substantial loss.

p. 5

Legal principles established

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  • The jurisdiction to grant stay under Order 42 rests on proof of substantial loss; mere execution or fear of eviction is not substantial loss.
  • A judgment debtor must not merely allege but prove substantial loss.
  • Twin principles: substantial loss and the appeal being rendered nugatory go hand in hand; failure to prove one dislodges the other.
  • An offer of security must come from the applicant as a price for stay.

Court orders

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  1. 1.All parties restrained from utilizing the parcel of land in any way whatsoever until the appeal is heard and determined
  2. 2.Costs of the application to be borne by the applicant

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Civil Procedure ActSection 3A
  • Civil Procedure Rules, 2010Order 42 Rule 6(1) & (2)
  • Civil Procedure Rules, 2010Order 51

Cases cited (9)

  • Butt vs Rent Restriction Tribunal
    Civil App No. NAI 6 of 1979
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    {2012} eKLR
  • Silverstein vs Chesoni
  • Equity Bank Ltd vs Taiga Adams Company Ltd
  • Elena D. Korir vs Kenyatta University
  • Halal & another vs Thornton & Turpin Ltd
  • Hassan Guyo Wakalo vs Straman EA Ltd
    (2013)
  • Carter & Sons Ltd vs Deposit Protection Fund Board & 2 Others
  • Machira T/A Machira & Co Advocates vs East African Standard (No 2)
Jurisdiction invoked
Order 42 Rule 6 and Order 51 of the Civil Procedure Rules, 2010; Section 3A of the Civil Procedure Act

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, "Richard Kipkemboi Limo v Hassan Kipkemboi Ngeny & 4 others [2018] KEELC 2131 (KLR)", Case Analysis (2018). Application dated 23.2.2018 in Petition No. 4 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2131/eng@2018-07-30

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