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ELCDismissedNot stated in the judgment· [2019] KEELC 2794 (KLR)

Saulo Kandie v Robert Kipchumba Cheruiyot [2019] KEELC 2794 (KLR)

Environment and Land Court
31 May 2019
AOA. Ombwayo
1,130 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to halt execution of a land decree because a struck-out suit leaves nothing to stay or appeal.

What this practically means

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Executive summary

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By a notice of motion dated 14th November 2018, the plaintiff Saulo Kandie sought an order staying or suspending execution of the decree in Eldoret CMCC No. 329 of 1998 pending a intended appeal, or in the alternative, an order maintaining the status quo on land reference Sergoit/Elgeyo Border Block 1(Beliomo) 136. The plaintiff's suit, which had challenged the enforceability of that decree, had been struck out by the Environment and Land Court on 24th October 2018, and the plaintiff was granted seven days to file a formal application for stay. He argued that delay was occasioned because his notice of appeal had not been signed and availed, that his family resided on the suit land, that he would suffer irreparable harm, and that he was ready to provide security of Kshs. 30,000. The defendant, Robert Kipchumba Cheruiyot, opposed the application through a replying affidavit, contending that stay orders could only issue from the trial court or the appellate court, that no substantial loss was demonstrated since the HCCA No. 3 of 2002 judgment confirmed his proprietorship of the parcel, that the application was filed with unreasonable delay, and that the application invoked non-existent provisions of law. The defendant also raised a preliminary objection. Counsel for the defendant further argued that the order struck out was a negative order incapable of being stayed. The court agreed, holding that since the suit had been struck out there was nothing to stay or execute, and that no appeal from CMCC No. 329 of 1998 lay before it. The application was dismissed with costs on 31st May 2019.

Key legal issues

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01

Whether there is anything capable of being stayed

Holding

The application fails because the suit was struck out, leaving no decree or proceedings to stay; the order that could have issued was a negative order incapable of execution

Reasoning

The court had struck out the plaintiff's suit, which had challenged the enforceability of the decree in Eldoret CMCC No. 329 of 1998. Since the suit was struck out, there is no decree of this court to execute and no live proceedings to stay. The decree in the subordinate court is a separate matter from which no appeal lies before this court, so this court cannot stay its execution.

p. 2
02

Whether this court could stay execution of the decree in Eldoret CMCC No. 329 of 1998

Holding

No, because no appeal from that subordinate court decision lies before this court

Reasoning

Stay of execution of the decree in the subordinate court could only be sought from the trial court in Eldoret CMCC No. 329 of 1998, or from the appellate court seized of the appeal. The respondent's counsel argued the proper forums were the subordinate court, the High Court in HCCA No. 3 of 2002, or the Court of Appeal. The court found no appeal from CMCC No. 329 of 1998 was before it.

p. 2

Legal principles established

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  • Where a suit has been struck out, there is no decree or executable decision capable of being stayed
  • A court cannot order stay of execution of a subordinate court decision from which no appeal lies before it

Court orders

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  1. 1.The application dated 14th November 2018 is dismissed with costs to the defendant

Authorities

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Legislation

  • Environment and Land Court ActSection 13
  • Civil Procedure RulesOrder 42
  • Co-operative's Act
  • Constitution of Kenya
Jurisdiction invoked
Section 13 of the Environment and Land Court Act and Order 42 of the Civil Procedure Rules (as invoked by the applicant's counsel)

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, "Saulo Kandie v Robert Kipchumba Cheruiyot [2019] KEELC 2794 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2794/eng@2019-05-31

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