Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC No. 5 of 2019 (appeal from Principal Magistrates Court at Eldama Ravine)· [2020] KEELC 531 (KLR)

Emily Chesang v Barbara Chebet Moi & another [2020] KEELC 531 (KLR)

Environment and Land Court
3 November 2020
3,687 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

A Kenyan landowner lost her bid to pause eviction because fearing eviction alone is not enough—courts want proof of real, substantial loss.

What this practically means

#

Executive summary

#
This ruling by the Environment and Land Court at Eldoret (Odeny J) determined an application dated 11th March 2020 by the appellant/applicant seeking stay of execution of the judgment and decree of the Principal Magistrates Court at Eldama Ravine in ELC No. 5 of 2019, delivered on 10th December 2019, in which the respondent was declared owner of Lembus/Mumberes/2244 and granted eviction and permanent injunction against the applicant. The applicant, who had lived on the land for over 27 years and claimed adverse possession, sought stay pending appeal, having earlier been refused stay in the trial court. The court framed the enquiry under Order 42 Rule 6(2) of the Civil Procedure Rules: substantial loss, absence of unreasonable delay, and security for due performance of the decree. On substantial loss, the court found the applicant had failed to prove the loss she alleged; mere apprehension of eviction, without concrete evidence that the respondent had taken steps to evict her, does not amount to substantial loss since execution is a lawful process. On delay, the court found the application filed timeously, following the dismissal of the earlier lower-court application on 10th March 2020. On security, the court noted security need not be monetary and that the applicant, lacking title (her claim resting on adverse possession), had only offered Kshs. 100,000. Balancing the applicant's right of appeal against the successful litigant's right to enjoy the fruits of judgment, the court found the application devoid of merit and dismissed it with costs to the respondent on 3rd November 2020.

Key legal issues

#
01

Substantial loss

Holding

Applicant failed to prove substantial loss; she only claimed she had lived on the land for 27 years and was apprehensive of eviction

Reasoning

The court held that merely being in occupation and fearing eviction does not establish the substantial loss required under Order 42 rule 6(2). An applicant must prove concrete loss capable of tilting the court's discretion, since execution is a lawful process and postponement of realizing the fruits of judgment may also prejudice the respondent.

p. 4
02

Unreasonable delay

Holding

Application was filed timeously; judgment was delivered on 19th December 2019, the applicant filed for stay in the lower court on 23rd December 2019, and this application on 11th March 2020, the day the lower court ruling was delivered

Reasoning

The court found no inordinate delay as the application was filed the same day the trial court dismissed the earlier stay application. The three-month interval was accounted for by the pending lower-court application.

p. 4
03

Security for due performance of the decree

Holding

The applicant's offer of Kshs. 100,000 as security of costs was considered in light of the flexible nature of security, but the applicant had no title to deposit having hinged her claim on adverse possession

Reasoning

Security need not be monetary; a title deed or even no security may suffice depending on circumstances. Here the applicant, claiming adverse possession, had no title to deposit, leaving only a monetary offer which the court did not find sufficient to justify stay given the failure on substantial loss.

p. 4

Legal principles established

#
  • An applicant for stay of execution must establish substantial loss; mere apprehension that execution may be set in motion does not amount to substantial loss
  • The court must balance the applicant's right of appeal against the successful litigant's right to enjoy the fruits of the judgment
  • Security for due performance of the decree need not be monetary; its form depends on the circumstances of each case

Court orders

#
  1. 1.Application for stay of execution pending appeal dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (19)

  • Halai & another v Thornton & Turpin (1963) Ltd
    [1990] eKLR
  • Hassan Guvo Wakelo v Straman EAL Ltd
    (2013)
  • Kenya Shell Ltd v Beniamin Karuqu Kibiru & Another
    (1996) eKLR
  • Silverstein v Chesoni
    (2002) 1 KLR 867
  • Arun C Sharma v Ashana Raikundalia t/a A Raikundalia & Co Advocates & 2 others
    [2014] eKLR
  • Masisi Mwita v Damaris Wanjiku Njeri
    [2016] eKLR
  • Chris Munga N. Bichage & 2 others v I.E.B.C & 2 others
    [2017]
  • Mohamed Salim T/A Choice Butchery v Nasserpuria Memon Jamat
    (2013) eKLR
  • John Ratika Koini & 2 others v Samson Kipas ole Koini
    [2020] eKLR
  • Machira T/A Machira & Co. Advocates v East African Standard (No. 2)
    [2002] KLR 63
  • Patrick Nganga v Gerishon Ngure Mangara; John Muchiri Gachihi (Third Party)
    [2020] eKLR
  • Titus Mulandi Kitonga v B O (a minor suing through his mother and next friend S N O)
    [2016] eKLR
  • Elena D. Korir v Kenyatta University
    (2014) eKLR
  • Butt v Rent Restriction Tribunal
    [1979]
  • Emmy Keino (suing through her Attorney Stephen Mbogo Nyaga) v Board of Trustees Teleposta Pension Scheme
    NBI HCCA 587 of (2017)
  • James Wangalwa & Anr v Agnes Naliaka
    Misc. Application No 42 of 2011 (2012) eKLR
  • RWW v EKW
    [2019] eKLR
  • Felix Kipchoge Limo Langat v Robinson Kiplagat Tuwei
    Eldoret ElC 215 of 2017 eKLR
  • Carter & Sons Ltd v Deposit Protection Fund Board & 2 Others
    Civil Appeal No. 291 of 1997
On appeal from
Principal Magistrates Court at Eldama Ravine
ELC No. 5 of 2019
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Emily Chesang v Barbara Chebet Moi & another [2020] KEELC 531 (KLR)", Case Analysis (2020). ELC No. 5 of 2019 (appeal from Principal Magistrates Court at Eldama Ravine). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/531/eng@2020-11-03

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