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ELCDismissedNot stated in judgment (application dated 7th June 2019)· [2019] KEELC 505 (KLR)

David Kipkoskei Kimeli v Titus Barmasai [2019] KEELC 505 (KLR)

Environment and Land Court
21 November 2019
MOM. A. ODENY
2,322 words in judgment
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The bottom line

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A Kenyan land court refused a stay of execution because the applicant only claimed, but never proved, the specific loss eviction would cause him.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Eldoret (M. A. Odenny, J) determines the plaintiff/applicant's application dated 7th June 2019 seeking stay of execution pending an intended appeal against the judgment of 13th May 2019 which dismissed his originating summons claiming Uasin-Gishu Kipkabus Settlement Scheme/47 (approx. 4.3ha) by adverse possession. The applicant, through counsel, argued that he had complied with the prerequisites in Order 42 Rule 6(2) of the Civil Procedure Rules: the application was filed only about 20 days after judgment; he was in possession of the land and would suffer substantial loss if eviction proceeded and the status quo was altered; and he was willing to abide by security conditions, proposing that non-interference with the land would suffice since the title deed was with the respondent. The respondent opposed, contending the application was late, that the applicant was not the registered owner and had occupied only with permission, and that no specific loss was demonstrated, relying on Antoine Ndiaye, Prilscot and Machira. The court framed three issues: delay, substantial loss, and security. It found the 20-day period was not inordinate delay, but held the applicant had not established the specific substantial loss he would suffer, noting occupation found to be illegal is not a ground for stay and that courts should not sanction continued trespass. Applying Machira and Peter Rugu Gikanga, the court found the threshold unmet and dismissed the application, but in the interest of justice ordered a conditional stay upon deposit of Kshs. 300,000 with the respondent's advocate within 30 days, failing which the stay lapses. The ruling was delivered at Eldoret on 21st November 2019.

Key legal issues

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01

Whether the application for stay was brought without undue delay

Holding

Filing 20 days after judgment is not inordinate delay

Reasoning

The judgment was delivered on 13th May 2019 and the application filed on 7th June 2019, a period of about 20 days. The court held this period was not inordinate, so the first limb of Order 42 Rule 6(2) was satisfied, and no further explanation for delay was required.

p. 3
02

Whether the applicant established substantial loss

Holding

No; the applicant did not establish the kind of substantial loss he would suffer

Reasoning

Relying on Machira and Peter Rugu Gikanga, the court held that mere allegation of substantial loss, or occupation of land whose occupation has been declared illegal, is insufficient. The applicant had to prove specific details and particulars of tangible loss, which he failed to do. The court also declined to sanction continued trespass.

p. 3
03

Security for due performance of the decree

Holding

Though stay was refused, the court in the interest of justice granted a conditional stay upon deposit of Kshs. 300,000

Reasoning

Notwithstanding failure of the threshold, the court exercised discretion in the interest of justice, conditioning the stay on the applicant depositing Kshs. 300,000 with the respondent's advocate within 30 days, failing which the stay lapses.

p. 3

Legal principles established

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  • A 20-day period in filing an application for stay is not inordinate delay
  • An applicant for stay must prove specific substantial loss; mere allegation or the fact of occupation of land whose occupation has been held illegal does not suffice
  • The court will not sanction continued trespass

Court orders

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  1. 1.The application for stay of execution pending appeal is dismissed, the applicant having failed to meet the threshold
  2. 2.In the interest of justice, the applicant to deposit Kshs. 300,000 for due performance of the decree with the Advocate for the respondent within 30 days, failing which the stay lapses

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Civil Procedure Rules, 2010Order 42 Rule 6 (also referred to as Order 41 Rule 4 / Order 4 Rule 6 in quoted passages)
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (12)

  • Emmy Keino (suing through her Attorney Stephen Mbogo Nyaga) vs Board of Trustees Teleposta Pension Scheme
    NBI HCCA 587 of 2017
  • James Wangalwa & Anr vs Agnes Naliaka
    Misc. Application No. 42 of 2011 (2012) eKLR
  • Silverstein vs Chesoni
    (2002) 1 KLR 867
  • Mukuma vs Abuoga
  • Felix Kipchoge Limo Langat vs Robinson Kiplagat Tuwei
    (2018) eKLR; Eldoret ElC 215 of 2017 eKLR
  • Kenya Shell Ltd vs Benjamin Karuga Kigibal & Anr
    (1982-1988) 1 KLR 1018
  • Antoine Ndiaye vs African Virtual University
    [2015] eKLR
  • Prilscot Company Limited v Monica Heho
    [2015] eKLR, Civil Appeal No. 482 of 2014
  • Halai & Anor v Thornton Turpin (1963) Ltd
    (1990) KLR 365
  • Machira T/A Machira & Co Advocates vs East African Standard (No 2)
    [2002] KLR 63
  • Peter Rugu Gikanga & another v Weston Gitonga & 10 others
    [2014] eKLR
  • Charles Wahome Gethi vs Angela Wairimu Gethi
    Court of Appeal Civil Application No. NAI 302 of 2007 UR 205/2007
On appeal from
Environment and Land Court (judgment of 13th May 2019 dismissing the plaintiff's suit; appeal intended to Court of Appeal, notice of appeal filed)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Kipkoskei Kimeli v Titus Barmasai [2019] KEELC 505 (KLR)", Case Analysis (2019). Not stated in judgment (application dated 7th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/505/eng@2019-11-21

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