Jonathan Kiprotich Barsulai v John Kiprop Chemweno & 7 others [2018] KEELC 4171 (KLR)
The bottom line
#An Eldoret court granted a land eviction appeal stay only after 42 days of unexplained delay and no proof of loss—moving fast and proving harm matters.
What this practically means
#Executive summary
#Key legal issues
#Undue delay in filing the application
The application was filed 42 days after judgment without explanation, and the applicants had not sought oral stay; the delay condition was not satisfied.
Judgment was delivered on 18 September 2017, the decree extracted on 5 October 2017, and the application filed on 30 October 2017 - three days before expiry of the 45 days given to vacate. The applicants never sought interim oral stay and offered no explanation for the delay, which the court found inexcusable.
Substantial loss
The applicants failed to prove substantial loss; mere assertions of eviction and homelessness without evidentiary material cannot ground a stay.
Relying on Equity Bank Ltd v Taiga Adams Co. Ltd, the court held that substantial loss must be established by showing, for example, that the respondent would be unable to reimburse the decretal amount if the appeal succeeds. No such material was placed before the court; the applicants' claim that they would be rendered destitute was unsubstantiated.
Security for due performance of the decree
The court has discretion under Order 42 rule 6(2)(b) to order security; given no substantial loss was shown, the appeal would not be rendered nugatory if the decretal damages were paid and a further deposit made.
The court reasoned that the discretion to order security must be exercised judiciously. Since substantial loss was not demonstrated, demanding the general damages of Kshs. 150,000 and a further Kshs. 100,000 deposit would not stifle the appeal, and stay was granted only on those conditions.
Legal principles established
#- Proof of substantial loss is key to an application for stay pending appeal; mere allegations without proof are insufficient
- Order 42 rule 6(2)(b) gives the court discretion to order security for due performance of the decree, to be exercised judiciously
Court orders
#- 1.Stay of execution of the decree granted on condition that the applicants pay Kshs. 150,000 to the respondent within 30 days
- 2.Applicants to deposit a further Kshs. 100,000 in court within 30 days, held as security for the performance of the decree, failing which the stay lapses
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jonathan Kiprotich Barsulai v John Kiprop Chemweno & 7 others [2018] KEELC 4171 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4171/eng@2018-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.