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ELCAllowedApplication dated 18th August 2020 (suit number not stated in judgment)· [2020] KEELC 535 (KLR)

Jared Kiprotich Biwott & another v Jonathan Kibe [2020] KEELC 535 (KLR)

Environment and Land Court
18 November 2020
MOM. A. ODENY
2,790 words in judgment
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The bottom line

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Kenya's Eldoret Environment and Land Court paused execution of a land judgment, but only because the losing party agreed to deposit Kshs. 300,000 as security.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) determined an application dated 18th August 2020 by the defendant/applicant seeking stay of implementation and execution of the court's judgment delivered on 5th August 2020, pending an intended appeal. The applicant had filed a Notice of Appeal on 10th August 2020 and paid for typed proceedings. Counsel framed three issues under Order 42 rule 6(2) of the Civil Procedure Rules: absence of unreasonable delay, substantial loss, and security for due performance of the decree. The applicant relied on authorities establishing that the merits of the appeal are immaterial, that stay preserves the subject matter so a successful appeal is not rendered nugatory, and that substantial loss is the cornerstone of stay jurisdiction. The respondent opposed, arguing the absence of a Memorandum of Appeal, lack of demonstrated substantial loss, and that execution is a lawful process which does not itself amount to substantial loss. The court found the application filed timeously, being 13 days after judgment. On substantial loss, it held that the applicant's long occupation and valuation report were not necessarily indicators of loss since the judgment had outlawed his occupation, and occupation might be in furtherance of trespass. Nonetheless, balancing the applicant's right of appeal against the respondent's right to the fruits of judgment, the court granted a stay of execution on condition that the applicant deposits Kshs. 300,000/= in a joint interest-earning account of the advocates on record within 30 days, failing which the stay lapses. No costs order was recorded.

Key legal issues

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01

Whether the application was filed without unreasonable delay

Holding

The court found the application filed timeously, immediately after judgment.

Reasoning

Judgment was delivered on 5th August 2020 and the application filed on 18th August 2020, a period of 13 days. The court found this not disputed and held the threshold met.

p. 4
02

Whether the applicant would suffer substantial loss if stay is not granted

Holding

The court found the applicant's occupation and valuation report insufficient indicators of substantial loss, since occupation had been outlawed by the judgment.

Reasoning

The court held that the applicant has lived on the land since 1948 and did a valuation report, but occupation may be in furtherance of trespass following the judgment; mere allegation of substantial loss is not enough. Despite this, the court found it in the interest of justice to grant stay conditioned on security.

p. 4
03

Whether the applicant was willing to give security for due performance of the decree

Holding

The applicant was ready and willing to abide by reasonable conditions; the court exercised its discretion to grant stay conditioned on a deposit of Kshs. 300,000/=.

Reasoning

The grant of stay is discretionary and exercised case by case. Balancing the competing rights of the decree holder and the appellant, the court ordered a conditional stay with a monetary deposit in a joint interest-earning account of the advocates.

p. 4

Legal principles established

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  • Substantial loss is the cornerstone of an application for stay of execution pending appeal and mere allegation of substantial loss is not enough.
  • Occupation of suit land does not of itself guarantee continued occupation where the occupation may be trespass.

Court orders

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  1. 1.Stay of implementation and execution of the judgment delivered on 5th August 2020 granted on condition that the applicant deposits Kshs. 300,000/= in a joint interest-earning account of the advocates on record within 30 days, failing which the stay order lapses

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(2)
  • Civil Procedure RulesOrder 42 Rule 4
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159(2)(b)
  • Appellate Jurisdiction ActRule 5(2)(b)

Cases cited (15)

  • Safaricom Sacco Limited v Stephen Chorio Kiai another
    [2019] eKLR
  • Regional Institute of Business Management v Lucas Ondong' Otieno
    [2020] eKLR
  • Consolidated Marine v Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)
  • Beth Kaari & another v M'nyeri M'rimunya
    [2013]
  • Felix Kipchoge Limo Langat v Robinson Kiplagat Tuwei
    [2018] eKLR
  • Kenya Shell Limited v Benjamin Karuga Kigibu & Another
    (1982-1988) 1 KAR 1018
  • Kiplagat Kotut v Rose Jebor Kipngok
    [2015] eKLR
  • Anne Njeri Mwanqi v Muzaffer Musafee Essaiee & another
  • Kenya Tanzania Uganda Leasing Co. Ltd v Mukenya Ndunda
    [2013] eKLR
  • Kenya Commercial Bank Limited v Sun City Properties Limited & 5 Others
    [2012] eKLR
  • Charles Wahome Gethi v Angela Wairimu Gethi
    (2008) eKLR
  • James Wangalwa & another v Agnes Naliaka Cheseto
    (2012) eKLR
  • RWW vs. EKW
    [2019] eKLR
  • Absalom Dova vs. Tarbo Transporters
    [2013] eKLR
  • Silverstein vs. Chesoni
    (2002) 1 KLR 867
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, "Jared Kiprotich Biwott & another v Jonathan Kibe [2020] KEELC 535 (KLR)", Case Analysis (2020). Application dated 18th August 2020 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/535/eng@2020-11-18

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