Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEldoret CMCC No. 1454 of 2004 (appeal arising therefrom; application dated 15th December 2020)· [2021] KEELC 1846 (KLR)

Samuel Nyabiba Nyakeri v Peter Okibera Omwenga [2021] KEELC 1846 (KLR)

Environment and Land Court
22 September 2021
MOM. A. Odeny
2,814 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to stop an eviction because the applicant showed no real proof of the loss he would suffer from the eviction.

What this practically means

#

Executive summary

#
This ruling by M. A. Odeny, J of the Environment and Land Court at Malindi, delivered on 22nd September 2021, determines a Notice of Motion dated 15th December 2020 by the appellant/applicant seeking stay of execution of an eviction order issued on 20th November 2020 in respect of title number Nzoia Sisal/Moi's Bridge Block 1/3406, pending hearing of his appeal against the Chief Magistrates' Court's refusal to set aside or stay the eviction orders. The applicant argued that the eviction contravened Order 22 Rule 18 of the Civil Procedure Rules, which requires notice to show cause where execution is sought more than one year after a decree, and that the orders breached natural justice. The respondent opposed, chronicling a protracted dispute litigated through Eldoret CMCC No. 1454 of 2004, the Environment and Land Court, and the Court of Appeal, which ultimately awarded the parcel to the respondent. He contended the application was an abuse of process since the appellant had exhausted all avenues of redress and had pending review and stay applications before the Court of Appeal. The court framed a single issue: whether the applicant met the threshold for stay under Order 42 Rule 6(2). Holding that the applicant merely asserted grievance without demonstrating substantial loss, and that litigation must end, the court dismissed the application with costs, directing that the appellant should not use the courts to avoid implementation of a long-overdue order.

Key legal issues

#
01

Whether the applicant satisfied the conditions for stay of execution under Order 42 Rule 6(2)

Holding

The applicant failed to demonstrate substantial loss; he merely asserted grievance with the eviction order without empirical or documentary evidence of loss, so the application failed.

Reasoning

The court set out the three conditions under Order 42 Rule 6(2): substantial loss, no unreasonable delay, and security. The cornerstone is demonstrating substantial loss and its nature. The applicant merely 'rapped' about grievance and argued the merits of his appeal at the application stage without clear evidence of loss. The dispute had been litigated through the magistrates' court, the ELC and the Court of Appeal, and litigation must come to an end.

p. 3

Legal principles established

#
  • The purpose of stay of execution pending appeal is to preserve the subject matter of the appeal so as not to render the appeal nugatory
  • The applicant for stay must demonstrate and explain the substantial loss he will suffer; mere assertions of loss are insufficient
  • Litigation must come to an end; parties should not use courts to avoid implementation of court orders

Court orders

#
  1. 1.The Notice of Motion dated 15th December 2020 seeking stay of execution of the eviction order issued on 20th November 2020 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 22 Rule 18
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Limitation of Actions Actsections 7, 2(2)(3)

Cases cited (11)

  • Bhutt v Rent Restriction Tribunal
    (1982) KLR 417
  • Moses Kipkurui Bor v John Chirchir
    (2019) eKLR
  • M'Ikiara M'Rinkanya & Another v Gilbert Kabeere M'Mbijiwe
    [2007] eKLR
  • David Kimeli Kiprono & another v Hosea K. Kemboi & 2 others
    (2014) eKLR
  • Seurex Agencies (K) Ltd v Paul Otieno Ambedho
    (2019) eKLR
  • HGE v SM
    [2020] eKLR
  • RWW v EKW
    [2019] eKLR
  • Peter Kaeka Mutie & Another v Patricia Ndunge Mwanzia
    [2020] eKLR
  • Samvir Trustee Limited v Guardian Bank Limited
    Nairobi (Milimani) HCCC 795 of 1997
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Joseph Meme & Another v Reuben Murungi
    [2006] eKLR
On appeal from
Chief Magistrates' Court, Eldoret
Eldoret CMCC No. 1454 of 2004
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Samuel Nyabiba Nyakeri v Peter Okibera Omwenga [2021] KEELC 1846 (KLR)", Case Analysis (2021). Eldoret CMCC No. 1454 of 2004 (appeal arising therefrom; application dated 15th December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1846/eng@2021-09-22

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