Rebecca Chepkoech Lagat v William Kibor Lagat [2020] KEELC 3265 (KLR)
The bottom line
#An Eldoret court dismissed a stay of execution because the applicant could not show he would suffer real, provable loss if the judgment took effect.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant proved substantial loss
No - the applicant did not demonstrate the substantial loss he would suffer; he does not live on the suit land and even residence would not suffice
The court adopted the line of authority holding that mere assertion of loss, or the fact that execution may be levied, is not substantial loss. The applicant must show that execution would create a state of affairs irreparably affecting the core of his position as successful party in the appeal. Because the applicant did not live on the suit land and offered no concrete demonstration of loss, this cornerstone condition failed, dislodging the application.
Whether the application was filed without unreasonable delay
Yes - the application was filed timeously
Judgment was delivered on 8th April 2019, the notice of appeal was filed on 16th April 2019, and the application on 13th June 2019. Though this was about two months after judgment and after the 30-day automatic stay had lapsed, the court found the application was brought timeously and without unreasonable delay.
Whether security for due performance of the decree was offered
Yes - the applicant offered to abide by any conditions as to security the court may order
The court recounted authority explaining that security under Order 42 Rule 6 guarantees due performance of the decree and is not punitive. The applicant's undertaking to provide security as directed satisfied this condition, but since all four conditions must be met and substantial loss was not proved, the satisfaction of this condition alone could not secure a stay.
Whether the discretion to grant stay should be exercised in the applicant's favour
No - all four conditions must be met; the discretion must be exercised judiciously balancing the rights of the successful litigant and the applicant
Relying on Equity Bank Ltd v Taiga Adams Co. Ltd, the court stressed that all four conditions, not one or some, must be met before stay can be granted. The court emphasised judicious exercise of discretion and balancing the successful litigant's rights against the applicant's pursuit of appeal, finding the applicant would not suffer substantial loss if the decree were implemented.
Legal principles established
#- For a stay of execution under Order 42 Rule 6, an applicant must establish sufficient cause, substantial loss, absence of unreasonable delay and security; all conditions must be met, and the grant is discretionary.
- A party claiming substantial loss must go beyond mere assertion and demonstrate the loss; merely residing or living on suit land is not sufficient.
Court orders
#- 1.The application dated 13th June 2019 seeking stay of execution is dismissed
- 2.In the interest of justice, upon registration of the title in the respondent's name, the respondent should not part with possession or charge the property pending the hearing and determination of the intended appeal
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (first-instance application for stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rebecca Chepkoech Lagat v William Kibor Lagat [2020] KEELC 3265 (KLR)", Case Analysis (2020). Not stated in the ruling (application dated 13th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3265/eng@2020-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.