Fred K. Sabai, Richard Kipsoi, Daniel Kapkara, Daniel Chemaket & Eliud Sichei v District Land Adjudication & Settlment Office, Trans-Nzoia, Attorney General, Peter Chemaswet, Nathan Jindet Ndiwa, James Boiyo Bello, Robinson Chesboi, Barnaba K. Kiteywo, Wilfred M. Cheprot, Juma William Chemosit, Peter Kibarak Kibet, John Kapkara Masai & Stanley Kipkoech (Environment & Land Case 107 of 2012) [2019] KEELC 78 (KLR)
The bottom line
#A Kenyan land court paused eviction until an appeal is heard, because the applicants already live on and developed the land, provided they deposit Kshs. 300,000 security and file their appeal within 45 days.
What this practically means
#Executive summary
#Key legal issues
#Existence of an appeal on record
A notice of appeal filed on 13/2/2019 satisfied Order 42 rule 6(4)
The court examined the supporting affidavit and found exhibit RK3(a), a notice of appeal, on record. For purposes of Order 42 rule 6(4), this was sufficient to establish an appeal in place, opening the door to a stay pending appeal.
Substantial loss
Applicants in occupation with permanent and temporary developments would suffer substantial loss if evicted pending appeal
The court considered annextures RK6(a) and 6(b) demonstrating occupation and development of the suit properties. Eviction before the appeal's determination would expose the applicants to substantial loss, satisfying the key threshold for stay under Order 42 rule 6.
Expedition and delay
Filing one month and 12 days after judgment was not inordinate delay, especially as a 45-day stay granted with the judgment had not lapsed
Judgment was delivered on 31/1/2019 and the application filed 13/3/2019. The court found this delay minor and sufficiently explained, since the court's own 45-day stay order was still running when the applicants moved the court.
Security as condition for stay
Security for costs of Kshs. 300,000 plus filing of the record of appeal within 45 days would safeguard the respondents' interests
The applicants expressed willingness to abide by conditions. The court, exercising discretion, settled on security for costs of the intended appeal held in a joint interest-earning account, together with timely filing of the record of appeal, failing which the stay lapses.
Legal principles established
#- The existence of a notice of appeal suffices to constitute an appeal on record for purposes of Order 42 rule 6(4)
- Where applicants have occupied and developed suit land, eviction before the appeal is finalised may cause substantial loss
- The court has discretion to condition a stay pending appeal on the provision of security
Court orders
#- 1.Stay of execution of the decree and all consequential orders pending full compliance with Section 152E of the Land Act and hearing and determination of the intended appeal
- 2.Applicants to deposit Kshs. 300,000 as security for costs of the appeal in an interest-earning account held jointly by counsel for both parties within 45 days of the order
- 3.Applicants to file the record of appeal and serve it on the respondents within 45 days of the order
- 4.In default of compliance, the stay of execution shall automatically lapse
- 5.Costs of the application to abide the decision in the intended appeal
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules 2010; Sections 1A, 2A and 3A of the Civil Procedure Act; Environment and Land Court Act, 2011; Land Act, 2012; Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fred K. Sabai, Richard Kipsoi, Daniel Kapkara, Daniel Chemaket & Eliud Sichei v District Land Adjudication & Settlment Office, Trans-Nzoia, Attorney General, Peter Chemaswet, Nathan Jindet Ndiwa, James Boiyo Bello, Robinson Chesboi, Barnaba K. Kiteywo, Wilfred M. Cheprot, Juma William Chemosit, Peter Kibarak Kibet, John Kapkara Masai & Stanley Kipkoech (Environment & Land Case 107 of 2012) [2019] KEELC 78 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/78/eng@2019-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.