Patrick Lokwanga & 4 others (sued in their personal capacity and on behalf of Karel Clan) v Joseph Cheboi & 5 others (sued in their personal capacity and on behalf of Kamoi Clan) [2019] KEELC 960 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the application was filed timeously
The application filed on 8th February 2018, eight days after judgment delivered on 30th January 2018, met the timeliness requirement
The court found the short interval between delivery of judgment and filing of the application showed no undue delay, satisfying the first limb of Order 42 Rule 6(2). However, this alone did not entitle the applicants to a stay, as the other conditions were not met.
Whether the applicants demonstrated substantial loss
The applicants failed to prove substantial loss; mere assertion that they will suffer loss is insufficient
The court found substantial loss to be the cornerstone of stay applications. The applicants merely deponed that they would suffer loss without substantiating it. Their supporting affidavit admitted they were not in occupation, and the court could midwife implementation of its own orders, including the adjudication process ordered in the judgment.
Whether stay can be granted absent a valid Notice of Appeal
Stay pending an intended appeal cannot be granted where no valid Notice of Appeal exists on record
The court noted the absence of a valid Notice of Appeal attached to the application and the respondent's contention that the purported Notice of Appeal dated 8th February 2019 was irregularly on the file. Staying execution pending no action in the next court would indefinitely suspend the decree and amount to an abuse of process.
Security for due performance of the decree
Any deposit made under the set-aside ex parte order could be refunded to the applicants
The applicants stated they had deposited money in court under an ex parte stay order that was subsequently set aside. The court held they could ask for a refund of that money, and no issue of security stood in the way of dismissing the application.
Legal principles established
#- An applicant for stay of execution must substantiate the substantial loss claimed; a mere assertion of loss is insufficient
- A court should not stay execution of its own judgment pending an appeal where no valid Notice of Appeal has been filed
Court orders
#- 1.The application dated 8th February 2018 seeking stay of execution is dismissed
- 2.The earlier orders of maintenance of status are vacated
- 3.Costs of the application to the respondents
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Lokwanga & 4 others (sued in their personal capacity and on behalf of Karel Clan) v Joseph Cheboi & 5 others (sued in their personal capacity and on behalf of Kamoi Clan) [2019] KEELC 960 (KLR)", Case Analysis (2019). Not stated in the judgment (application by Notice of Motion dated 8th February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/960/eng@2019-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.