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ELCDismissedKericho ELC Case (ruling of 2 April 2019 in suit with judgment delivered 20 September 2018; application dated 16 April 2019)· [2019] KEELC 2366 (KLR)

Gilbert Kimutai Koech v Wilson Kipngeno Koech [2019] KEELC 2366 (KLR)

Environment and Land Court
12 July 2019
JOJ. M Onyango
968 words in judgment
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The bottom line

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A Kericho court refused to pause execution of a land judgment because the supporting case was withdrawn and no appeal was pending.

What this practically means

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Executive summary

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The plaintiff, Gilbert Kimutai Koech, moved the Environment and Land Court at Kericho by notice of motion dated 16 April 2019 seeking a stay of execution of the court's ruling of 2 April 2019 together with all other proceedings in the cause, pending the hearing and determination of Kericho ELC Case No. 15 of 2019, in which his siblings had sued the respondent alleging fraud in the acquisition of the suit title. He deponed that execution would cause him and his siblings irreparable loss as they had nowhere else to move to. The respondent opposed through grounds of opposition arguing the application was bad in law, an abuse of process, and that the applicant was not a party to the new suit. The court framed three issues: whether the application was overtaken by events, whether the conditions for stay were met, and whether the application was merited. It found that Kericho ELC Case No. 15 of 2019 had been withdrawn on 30 May 2019, leaving the application without basis, and that there was no pending appeal against the judgment of 20 September 2018. The court further noted the application was brought under sections 3, 3A and Order 22 Rule 22 of the Civil Procedure Rules, requiring sufficient cause, which the applicant failed to demonstrate. Applying the maxim that equity aids the vigilant, the court dismissed the application and made no order as to costs.

Key legal issues

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01

Whether the application was overtaken by events

Holding

Yes; the application was predicated on Kericho ELC Case No. 15 of 2019, which was withdrawn on 30 May 2019, leaving the application without foundation

Reasoning

The application was grounded on the applicant's siblings' suit alleging fraud in the acquisition of the respondent's title. That suit was withdrawn, and there was no appeal against the judgment of 20 September 2018. The application was therefore made in a vacuum and destined to fail.

p. 2
02

Whether the applicant met the conditions for stay of execution under Order 22 Rule 22

Holding

No; the applicant failed to show sufficient cause for denying the respondent the fruits of his judgment

Reasoning

Order 22 Rule 22(1) requires sufficient cause for a court executing a decree to stay execution. The applicant had earlier obtained a stay under Order 42 but failed to meet its conditions, and having abandoned any appeal, granting a stay absent an appeal would be contrary to the dictates of justice.

p. 2

Legal principles established

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  • An application under Order 22 Rule 22 for stay of execution must be made upon sufficient cause being shown and for a reasonable time to enable the judgment-debtor to apply to the court which passed the decree or an appellate court

Court orders

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  1. 1.The application dated 16th April 2019 seeking stay of execution is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure Actsection 3
  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 22 Rule 22(1)
  • Civil Procedure RulesOrder 42

Cases cited (2)

  • Anita Chelagat O’donovan & 2 Others v Fredrick Kwame Kumah & 2 Others
    [2015] eKLR
  • Kalya Soi Farmers’ Cooperative Society v Paul Kirui & Another
    [2013] eKLR
Jurisdiction invoked
Sections 3, 3A of the Civil Procedure Act and Order 22 Rule 22 of the Civil Procedure Rules

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, "Gilbert Kimutai Koech v Wilson Kipngeno Koech [2019] KEELC 2366 (KLR)", Case Analysis (2019). Kericho ELC Case (ruling of 2 April 2019 in suit with judgment delivered 20 September 2018; application dated 16 April 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2366/eng@2019-07-12

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