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ELCDismissedNotice of Motion dated 19th December, 2019 in the appeal whose judgment was delivered on 6th December, 2019· [2020] KEELC 2898 (KLR)

Teresiah Somokwony Kibor v Paul Chepkonga Biwott & another [2020] KEELC 2898 (KLR)

Environment and Land Court
7 May 2020
935 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to halt execution of a land judgment because the appellant could not prove she would suffer real, substantial loss.

What this practically means

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Executive summary

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The Appellant, having lost her appeal before the Environment and Land Court at Eldoret by judgment delivered on 6th December 2019 (which dismissed her appeal against a Lower Court decision of 26th November 2014 permanently restraining her from land parcel MDA Block 32 Plot No. 3), moved the Court by Notice of Motion dated 19th December 2019 seeking stay of execution of that judgment pending her appeal to the Court of Appeal, to which she had lodged a notice of appeal dated 18th December 2019. She argued that execution would permanently injunct her from land on which she had developed her home and lived with her children. The 1st Respondent opposed, asserting he was legally in possession, that the Appellant occupied a different parcel, that there was no house on the land, and that no loss had been demonstrated. The Court heard counsel, conducted a site visit on 20th January 2020, and found the parcel uncultivated and unoccupied, consistent with both parties' admissions that neither had used it since about 2015-2016. The Court found the Appellant's sworn claim of residing on the suit land untrue, amounting to perjury, and held she had failed to demonstrate substantial loss. The Motion was dismissed with costs to the 1st Respondent. The ruling was delivered on 7th May 2020 and digitally transmitted to counsel.

Key legal issues

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01

Whether stay of execution pending appeal was merited

Holding

Stay refused because the Appellant failed to establish substantial loss; her affidavit claim of residing on the suit land was contradicted by the parties' own admissions and the court's site visit.

Reasoning

The Court considered the Motion, affidavits, counsel's submissions and its own observation during a site visit. Both parties admitted the suit land had not been used since around 2015-2016. The Appellant pointed out her home on a bordering plot, contradicting her sworn claim that she lived on the suit land. Having failed to show substantial loss, stay could not issue and she was to bear the costs.

p. 2

Legal principles established

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  • An applicant for stay of execution must demonstrate that she will suffer substantial loss if the order is not granted.

Court orders

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  1. 1.The Appellant's Notice of Motion dated 19th December, 2019 seeking stay of execution is dismissed.
  2. 2.The Appellant to meet the 1st Respondent's costs in the application.
On appeal from
Lower Court
null
Jurisdiction invoked
Inherent jurisdiction to grant stay of execution pending appeal to the Court of Appeal (notice of appeal dated 18th December, 2019)

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, "Teresiah Somokwony Kibor v Paul Chepkonga Biwott & another [2020] KEELC 2898 (KLR)", Case Analysis (2020). Notice of Motion dated 19th December, 2019 in the appeal whose judgment was delivered on 6th December, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2898/eng@2020-05-07

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