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ELCDismissed· [2021] KEELC 2333 (KLR)

Kampali Ole Kiok v Simon H Igecha Waithaka [2021] KEELC 2333 (KLR)

Environment and Land Court
28 July 2021
COChristine Ochieng
1,413 words in judgment
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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 of the Environment and Land Court at Kajiado on the Respondent (Applicant)'s Notice of Motion dated 31st August 2020, brought under sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6(1) of the Civil Procedure Rules, seeking stay of execution of a decree delivered on 26th May 2020 by Lady Justice C Ochieng, pending the hearing and determination of an intended second appeal. The decree had directed the Respondent (Applicant) to transfer fourteen acres out of land parcel Kajiado/Loodariak/804 to the Appellant (now Respondent) within 90 days, failing which the Deputy Registrar, ELC would execute the transfer forms. The applicant, through the supporting affidavit of his counsel Ernest Githuka Ndung'u, argued that execution would render the appeal nugatory, that the application was made without unreasonable delay given the earlier 90-day stay, and relied on Butt v Rent Restriction Tribunal. The respondent opposed, contending the applicant failed to demonstrate substantial loss, was guilty of delay and laches, and failed to offer security. Only the applicant filed written submissions. The court framed one issue: whether stay of execution pending the second appeal should be granted. It held that the applicant failed to show substantial loss, especially as the respondent had been on the suit land, and that the application was filed only after the court had already granted a 90-day stay; further, since an appeal had been lodged in the Court of Appeal (Nairobi E 040 of 2020), the application should have been made in that court. The application was dismissed with costs.

Key legal issues

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Whether the threshold in Order 42 Rule 6(2) for stay of execution pending appeal was met

Holding

The applicant failed to demonstrate substantial loss, having not shown what loss he would suffer since the respondent has been on the suit land, and having filed the application only after the expiry of the 90-day stay already granted by the court.

Reasoning

The court examined Order 42 Rule 6(2) requiring substantial loss, absence of unreasonable delay and security. The applicant confirmed lodging a record of appeal but did not identify the substantial loss he stood to suffer, as the respondent remained on the suit land. The application was also made only after the court had granted a 90-day stay, and the proper forum was the Court of Appeal where the second appeal was pending.

p. 2

Legal principles established

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  • The court's power to grant or refuse a stay of execution is discretionary and should be exercised so as not to prevent an appeal
  • Where an appeal has already been lodged in the Court of Appeal and directions issued, an application for stay pending the second appeal should be filed in that Court

Court orders

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  1. 1.The Respondent (Applicant's) Notice of Motion application dated the 31st August, 2020 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A, 63(e), 72
  • Civil Procedure RulesOrder 42 Rule 6(1), 6(2)
  • Appellate Jurisdiction Act (Court of Appeal Rules)Rule 5(b)

Cases cited (1)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6(1) of the Civil Procedure Rules

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, "Kampali Ole Kiok v Simon H Igecha Waithaka [2021] KEELC 2333 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2333/eng@2021-07-28

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