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ELCDismissedEldama Ravine PMCC Award No. 2 of 2008 (appeal therefrom)· [2020] KEELC 3979 (KLR)

Charles Kipkoech Tallam & 4 others v Elkana Kibingor [2020] KEELC 3979 (KLR)

High Court of Kenya
21 October 2020
MOM. A. Odeny
3,120 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling by Dr. M. A. Odeny, Judge, delivered at Eldoret on 21st October 2020, on the applicants' notice of motion dated 9th March 2020 seeking stay of execution of orders issued on 16th October 2019 by the Principal Magistrate in Eldama Ravine PMCC Award No. 2 of 2008, pending an appeal. The impugned orders directed registration of the respondent as joint proprietor of Plot L/R 498/121 in equal shares, an audit of income from 4th June 2008, and payment to the respondent of his equal share, with liberty to execute on default. The applicants, described as elderly and in poor health, argued they would suffer substantial loss, including possible committal to civil jail, and that execution would render the appeal nugatory; they relied on Order 42 rule 6 of the Civil Procedure Rules and multiple authorities. The respondent countered that the applicants had not demonstrated substantial loss, that joint registration is reversible and does not dispossess them, that the application on the delay limb was compliant, and that the applicants had failed to show ability to refund in the event the appeal succeeded. The court framed three issues: substantial loss, undue delay, and security. It found the application timeously filed, but held that no substantial loss had been proved: mere assertions of loss are insufficient, joint registration does not dispossess the applicants and can be reversed if the appeal succeeds, and age is not a ground for stay. The court found the balance of competing interests tilted in favour of the respondent and dismissed the application with costs to the respondent.

Key legal issues

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01

Substantial loss

Holding

No substantial loss demonstrated; joint registration does not dispossess the applicants and is reversible if the appeal succeeds

Reasoning

The orders to be executed were registration as joint proprietors and an audit of income. The court found joint registration does not dispossess the applicants, as a joint owner cannot deal with the property without consent of other registered owners, and the registration can be reversed if the appeal succeeds. Mere allegations of loss, including claims of old age, were insufficient; substantial loss must be evidenced.

p. 2
02

Undue delay

Holding

Application filed timeously and delay is not a bar

Reasoning

The order sought to be stayed was issued on 16th October 2019; the applicants' application in the magistrate's court was dismissed on 20th February 2020 and the present application was filed on 9th March 2020, which the court found compliant with time.

p. 3
03

Security and balancing of interests

Holding

Security is discretionary; balancing competing interests favours the respondent enjoying the fruits of judgment

Reasoning

The court held it must balance a successful litigant's right to the fruits of judgment against the appellant's right not to have the appeal rendered nugatory. Since execution would not render the appeal nugatory, the balance tilts towards the respondent; the discretion on security must be exercised judiciously and not to punish a party.

p. 4

Legal principles established

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  • An applicant for stay of execution must prove substantial loss with tangible evidence; mere allegations cannot suffice
  • Age is not a ground for staying execution of a valid court order
  • Where execution can be reversed without prejudice upon success of the appeal, the appeal will not be rendered nugatory and stay should be refused

Court orders

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  1. 1.The application dated 9th March 2020 for stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1) and 6(2)
  • Civil Procedure RulesOrder 22; Order 43(1)
  • Civil Procedure ActSection 75; Section 79G
  • Constitution of KenyaArticle 50(1)

Cases cited (15)

  • Focin Motorcycle Co. Limited v Ann Wambui Wangui & another
    [2018] eKLR
  • Carter & Sons Limited v Kenya Finance Corporation Ltd & 2 Others
    HCCC No. 5638 of 1989
  • Macharia M. Sande v Kenya Co-operative Creameries Limited
    Mombasa CA No. 154 of 1992 (UR)
  • Nairobi City Council versus Thabiti Enterprises Limited
    [1995-1998] 2 EA 231
  • James Wamalwa & Another vs Agnes Maliaka Cheseto
    Misc. Application No. 42 of 2011
  • Selestica Limited v Gold Rock Development Ltd
    [2015]
  • Kenya Shell Limited vs Kibiru
    (1986) KLR 410
  • Caneland Ltd Malkit Singhpandhal & another v Delphis Bank Ltd
    [2000] eKLR
  • Stephen Waniohi vs Central Glass Industies Ltd
    Nairobi HCCC No. 6726 of 1991
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    E&L No. 200 of 2012 [2014] eKLR
  • Christopher Kendagor v Christopher Kipkorir
    Eldoret ELC 919 of 2012
  • Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others
    [2012] eKLR
  • Samvir Trustee Limited v Guardian Bank Limited
    [2000] eKLR
  • Macharia t/a Macharia & Co. Advocates v. East African Standard
    (2002) eKLR
  • Silverstein v. Chesoni
    [2002] 1 KLR 867
On appeal from
Principal Magistrate's Court, Eldama Ravine
Award No. 2 of 2008
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules; section 79G of the Civil Procedure Act

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, "Charles Kipkoech Tallam & 4 others v Elkana Kibingor [2020] KEELC 3979 (KLR)", Case Analysis (2020). Eldama Ravine PMCC Award No. 2 of 2008 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3979/eng@2020-10-21

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