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ELCDismissedConsolidated suits over land parcel Uasin Gishu/Kipkabus Settlement Scheme/378 (suit number not stated in the ruling)· [2020] KEELC 482 (KLR)

John Bartingei Samoei v Cosmas Makhanu Wekesa & another [2020] KEELC 482 (KLR)

Environment and Land Court
2 December 2020
1,646 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (S. M. Kibunja, J) on the 2nd Defendant's Notice of Motion dated 2nd June, 2020, seeking stay of execution of the judgment dated 21st April, 2020 and delivered on 6th May, 2020, in which the Court had found in favour of the Plaintiff in the two consolidated suits concerning land parcel Uasin Gishu/Kipkabus Settlement Scheme/378 and declared that the Defendants' interest therein, measuring 4.3 hectares, had been extinguished by adverse possession, with the Plaintiff to be registered as absolute proprietor. The 2nd Defendant, who had filed a Notice of Appeal on 19th May, 2020, argued he would suffer substantial loss and irreparable damage if stay was not granted. The Plaintiff opposed, contending the Motion was fatally defective for non-compliance with Order 9 Rule 9 of the Civil Procedure Rules, that the Order 42 Rule 6 threshold had not been met, and that the application had been overtaken by events since the decree had been forwarded to the Land Registry. The Court framed three issues: whether the application was properly before the Court, whether the Order 42 Rule 6 threshold was met, and costs. It held that M/s Komen Kipchirchir & Company Advocates had been on record since a Notice of Change of Advocate filed on 30th May, 2018 and had participated in the hearing, so Order 9 Rule 9 was not contravened. It found no unreasonable delay in filing the Motion. However, the 2nd Defendant failed to tender evidence of substantial loss, being out of possession, and the Plaintiff produced no certified title, register or official search proving registration; the Court nonetheless retained jurisdiction to stay further execution or preserve the status quo pending appeal. The Motion was dismissed with costs to abide the outcome of the appeal.

Key legal issues

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01

Whether the application was defective for non-compliance with Order 9 Rule 9 of the Civil Procedure Rules

Holding

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.

Reasoning

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.

p. 2
02

Whether the 2nd Defendant met the Order 42 Rule 6 threshold for stay of execution

Holding

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.

Reasoning

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.

p. 2
03

Whether the application had been overtaken by events by execution/registration of the decree

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The 2nd Defendant's Notice of Motion dated 2nd June, 2020 is dismissed with costs to abide the outcome of the appeal
  2. 2.The Ruling is to be transmitted digitally by the Deputy Registrar to the Counsel on record through their e-mail addresses

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (2)

  • Stephen Mwangi Kimote Vs Murata Sacco Society
    [2018] eKLR
  • Jane Jeptoo Sawe Vs Estate of Sylvester Kimagut Sang represented by Jennifer Chebet Sang
    Civil Application No. 49 of 2015
Jurisdiction invoked
Inherent jurisdiction under Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "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.