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ELCDismissedNotice of Motion dated 21/2/2019 (suit file not numbered in ruling)· [2019] KEELC 3714 (KLR)

Michael Kipchumba v Festo Asango [2019] KEELC 3714 (KLR)

Environment and Land Court (or High Court) at Kitale
8 April 2019
1,043 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kitale court refused to stop an eviction because the applicant could not prove losing his land would cause him substantial, evidenced loss.

What this practically means

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Executive summary

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This ruling by Mwangi Njoroge J at Kitale determines a Notice of Motion dated 21 February 2019 by the defendant, Festo Asango, seeking a stay of execution of an eviction order issued on 1 February 2019, pending the hearing of the application inter partes and pending an appeal against the judgment delivered on 31 January 2019. The applicant deposed that he had occupied and developed the suit plots for seven years, that they were his only source of livelihood, and that eviction before the appeal would occasion irreparable loss. The plaintiff, appearing in person, opposed the application as lacking merit and as a delaying tactic, noting that although a notice of appeal was filed, no application for proceedings had been made. The court applied Order 42 Rule 6(2) of the Civil Procedure Rules, identifying the three conditions of no unreasonable delay, substantial loss, and security. It found the application was filed timeously and that a notice of appeal was in place. However, no security had been offered, though the court downplayed this in a land matter. Critically, the court held that no substantial loss had been demonstrated: there was no evidential documentation of the alleged developments, which were not permanent, and the decree holder remained entitled to execute. The application was dismissed with costs to the respondent.

Key legal issues

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01

Delay in filing the stay application

Holding

Application filed 21/2/2019 after judgment of 31/1/2019, with notice of appeal filed 6/2/2019, was without unreasonable delay

Reasoning

The court measured the interval between delivery of judgment and filing of the motion, and separately noted that a notice of appeal was lodged only five days after judgment. On both counts the applicant satisfied the delay limb of Order 42 Rule 6(2)(a).

p. 2
02

Substantial loss

Holding

No substantial loss demonstrated; the alleged developments were not permanent and were unsupported by evidence

Reasoning

Although the applicant claimed the land was his sole livelihood with semi-permanent rental premises, the court noted the absence of evidential documentation of the developments and that they were not permanent. The decree holder remained entitled to execution absent sufficient reason, so the substantial-loss limb failed.

p. 2
03

Security for due performance of the decree

Holding

No security offered, but the court held security is less significant in land matters than in pecuniary decrees

Reasoning

The applicant offered no security. The court observed that because the subject matter is land rather than money, the security requirement is not as significant as in pecuniary decrees, implying this limb was not decisive.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution pending appeal
  • Substantial loss need not be monetary; inconvenience of eviction and later having to reclaim possession suffices, but it must be demonstrated

Court orders

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  1. 1.The application dated 21/2/2019 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 41 Rule 4 (as referenced in Kenya Shell case quote)

Cases cited (1)

  • Kenya Shell Limited vs Benjamin Karuga Kigibu & Ruta Wairimu Karuga
    (1982-1988) 1 KAR 1018
Jurisdiction invoked
Order 42 Rule 6(2) 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, "Michael Kipchumba v Festo Asango [2019] KEELC 3714 (KLR)", Case Analysis (2019). Notice of Motion dated 21/2/2019 (suit file not numbered in ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3714/eng@2019-04-08

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