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ELCStruck OutNot stated in judgment (original suit number not reproduced)· [2021] KEELC 1475 (KLR)

Charles Chebore Chelimo &another; v Jackson Cherono [2021] KEELC 1475 (KLR)

Environment and Land Court
18 October 2021
EOE.O. OBAGA
950 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a stay application because the affidavit was sworn by a non-party and the applicant had already been evicted.

What this practically means

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Executive summary

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The Defendant/Applicant moved the Environment and Land Court at Eldoret by Notice of Motion dated 24th December 2019 seeking stay of execution of a decree arising from a judgment delivered on 4th December 2019, pending an intended appeal to the Court of Appeal. The underlying suit, brought by the Plaintiffs/Respondents, had resulted in a permanent injunction against interference with LR No. Baringo/Kiboino/"A" 7, dismissal of the Applicant's counter-claim (which sought a declaration that the Respondents' title was fraudulently obtained and cancellation of title), and an order for eviction within 30 days. The supporting affidavit was sworn by the Applicant's daughter, Kalya Jemutai Kipsumei, a non-party. The Respondents opposed, arguing the affidavit offended Order 19 Rule 3(1) of the Civil Procedure Rules and that execution was complete, the Applicant having already been evicted. The court framed three issues: competency, whether the application was overtaken by events, and the threshold for stay pending appeal. Applying the Court of Appeal's decision in Moijo Matanya Ole Keiwa as quoted in Kenya Power & Lighting Co Ltd v Julius Wambale, Judge E.O. Obaga expunged the affidavit as incompetent, leaving the application without any ground to stand on. Obiter, the court held that even if competent the application would fail because execution was complete, there being nothing to stay, citing William Lerikan Konchellah. The application was struck out with costs to the Respondents.

Key legal issues

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01

Competency of supporting affidavit sworn by a stranger

Holding

The affidavit sworn by the Applicant's daughter, a non-party without leave, was expunged, leaving the application without foundation

Reasoning

Order 19 Rule 3(1) confines affidavits to facts within the deponent's knowledge and permits statements of information and belief only in interlocutory proceedings or by leave. The daughter was not a party and no leave was granted. Following the Court of Appeal in Moijo Matanya Ole Keiwa as cited in Kenya Power & Lighting Co Ltd v Julius Wambale, the affidavit was incompetent and expunged, collapsing the application.

p. 2
02

Overtaken by events - nothing to stay

Holding

Even if competent, the application would fail because the Applicant had already been evicted and execution was complete

Reasoning

The Respondents demonstrated that execution had been completed, the Applicant having been evicted from the suit property. Relying on William Lerikan Konchellah & another v Julius Labarai Ole Maito Lampushi, the court noted it cannot order stay where execution is complete, as courts do not issue orders in vain. The court expressed this as an obiter since the application fell on competency.

p. 2

Legal principles established

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  • Affidavits sworn by persons who are not parties to proceedings, without leave of the court, are incompetent and ought to be expunged from the record
  • A court cannot grant stay of execution where execution has already been carried out to completion, as courts do not give orders in vain

Court orders

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  1. 1.The Applicant's Notice of Motion dated 24th December 2019 seeking stay of execution is struck out
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 19 Rule 3(1)

Cases cited (3)

  • Kenya Power & Lighting Company Limited =vs= Julius Wambale & another
    [2019] eKLR
  • Moijo Matanya Ole Keiwa =vs= Chief Justice of Kenya & 6 others
    [2008] eKLR
  • William Lerikan Konchellah & another =vs= Julius Labarai Ole Maito Lampushi
    [2014] eKLR
On appeal from
Environment and Land Court (suit itself; appeal lodged to Court of Appeal)
Jurisdiction invoked
Inherent jurisdiction to strike out an incompetent application; Order 19 Rule 3(1) Civil Procedure Rules (stay pending appeal principles under Order 42 raised by the application)

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 Chebore Chelimo &another; v Jackson Cherono [2021] KEELC 1475 (KLR)", Case Analysis (2021). Not stated in judgment (original suit number not reproduced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1475/eng@2021-10-18

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