Esther Jepotip Cherekweny v Charles Kimutai Rotich & 2 others [2020] KEELC 2887 (KLR)
The bottom line
#The court refused to pause execution of a land judgment because the losing party waited too long and showed no real loss from handing over the title.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The 2nd Defendant failed to demonstrate the substantial loss he would suffer if stay was not granted
The court examined the grounds on the Motion and supporting affidavit and found no materials demonstrating the nature of loss likely to be suffered. While execution would transfer legal title from the 2nd Defendant to the Plaintiff, the court found that as the Plaintiff has been in possession since 1992, loss of title alone is not substantial loss because the title can be restored on a successful appeal.
Unreasonable delay
The application filed about one and a half months after judgment was unreasonably delayed, particularly as the decree had already been forwarded to the Central Registry
The court noted the 2nd Defendant gave no explanation for not seeking stay when filing the notice of appeal. By the time of the application, the plaintiff had already forwarded the decree for implementation, so earlier action could have arrested execution. This failure of the second Order 42 Rule 6 condition independently justified refusal.
Overtaken by events
The application could not be granted as the decree had been forwarded to the Central Registry, Nairobi, and this deposition was not rebutted
Relying on the Court of Appeal decision in Jane Jeptoo Sawe, the court held that where execution has already been effected or set in motion, a stay order serves no useful purpose. The plaintiff's unrebuted deposition that the decree had been forwarded to the Central Registry rendered the application academic.
Security for due performance
Although the 2nd Defendant offered no security, the court would have set terms had the application merited
The third condition under Order 42 Rule 6 is security for due performance of the decree. The 2nd Defendant did not offer security, but the court treated this as not decisive since it could have set terms itself; the application failed on substantial loss and delay grounds.
Legal principles established
#- Loss of legal title alone does not amount to substantial loss where the applicant remains in possession, as the title can be restored on successful appeal
- A stay of execution application is overtaken by events where the decree has already been executed or forwarded for implementation
- An applicant for stay must move the court without unreasonable delay, and failure to seek stay contemporaneously with filing the notice of appeal warrants explanation
Court orders
#- 1.The 2nd Defendant's Motion dated 28th November, 2019 seeking stay of execution of the judgment and decree of 17th October, 2019 is dismissed
- 2.Costs of the application awarded to the Plaintiff
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Jepotip Cherekweny v Charles Kimutai Rotich & 2 others [2020] KEELC 2887 (KLR)", Case Analysis (2020). Notice of Motion dated 28th November, 2019 (arising from Amended Originating Summons dated 16th August, 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2887/eng@2020-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.