John Bartingei Samoei v Cosmas Makhanu Wekesa & another [2020] KEELC 482 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the application was defective for non-compliance with Order 9 Rule 9 of the Civil Procedure Rules
The application was properly before the Court because M/s Komen Kipchirchir & Company Advocates had come on record for the 2nd Defendant by a Notice of Change of Advocate filed on 30th May, 2018, before judgment, and participated in the hearing.
The record showed the firm filed the Notice of Change of Advocate in 2018 replacing M/s A. K. Chepkonga & Company Advocates, drew the 2nd Defendant's submissions dated 29th January, 2020, and the Notice of Appeal dated 18th May, 2020. Order 9 Rule 9 governs a new advocate coming on record after judgment; here the firm was already on record, so the objection failed.
Whether the 2nd Defendant met the Order 42 Rule 6 threshold for stay of execution
No. The 2nd Defendant did not demonstrate substantial loss; the alleged substantial loss and irreparable damage were not detailed or proved, and he was not in possession of the suit land.
Order 42 Rule 6 requires an applicant to show substantial loss would result unless stay is granted. The Plaintiff was found to be in occupation and the judgment was in his favour. If the 2nd Defendant succeeds on appeal, the court can issue appropriate orders to restore possession and title, so no substantial loss was shown. The application was also filed without unreasonable delay.
Whether the application had been overtaken by events by execution/registration of the decree
The Plaintiff's claim that the decree had been forwarded to the Land Registry did not establish that the transfer had been completed, as no certified title, register or official search was exhibited.
The Plaintiff contended the application was overtaken by events because the decree was sent to the Land Registry on 11th June 2020. The Court held that without documentary evidence of registration, it could not conclude execution was complete, and even then it would retain jurisdiction to stay further execution or preserve the status quo pending appeal.
Legal principles established
#- An applicant for stay of execution must tender proof that substantial loss would result if the order is not granted; mere allegation of substantial loss and irreparable damage without details is insufficient.
- A party claiming a decree has been executed must avail documentary evidence, such as a certified copy of title, register or official search, to show the suit land has been registered in its name; absent such evidence the court retains jurisdiction to stay further execution or maintain the status quo.
Court orders
#- 1.The 2nd Defendant's Notice of Motion dated 2nd June, 2020 is dismissed with costs to abide the outcome of the appeal
- 2.The Ruling is to be transmitted digitally by the Deputy Registrar to the Counsel on record through their e-mail addresses
- Jurisdiction invoked
- Inherent jurisdiction under Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Bartingei Samoei v Cosmas Makhanu Wekesa & another [2020] KEELC 482 (KLR)", Case Analysis (2020). Consolidated suits over land parcel Uasin Gishu/Kipkabus Settlement Scheme/378 (suit number not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/482/eng@2020-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.