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ELCDismissed· [2021] KEELC 2477 (KLR)

Caleb K. Kipkorir Bett v Joseph Wanjau [2021] KEELC 2477 (KLR)

Environment and Land Court
21 July 2021
2,421 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Eldoret dismissed a stay of execution application filed 14 months after judgment, without explanation or proof of substantial loss.

What this practically means

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Executive summary

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This ruling disposes of a Notice of Motion dated 12th February 2021 by the defendant/applicant seeking stay of execution of the judgment of 11th December 2019 and the decree arising therefrom, and/or a preservatory order maintaining the status quo over LR No. 498/657, pending an intended appeal. The applicant filed a notice of appeal and submitted that he had developed the suit property, farmed it, built his matrimonial home, and would suffer substantial and irreparable loss if evicted; he relied on authorities on the court's inherent jurisdiction, timeliness, and security for due performance. The plaintiff/respondent opposed the application as an abuse of process, pointing to the three conditions in Order 42 Rule 6(2) of the Civil Procedure Rules and highlighting that the application was filed more than fourteen months after judgment with no explanation for the delay. The court, applying Order 42 Rule 6, found that the 14-month delay was inordinate and unexplained. On substantial loss, the court found that despite temporary structures on the land, the applicant neither resided there, conducted vital business there, nor held registered title, and had not demonstrated the substantial loss required. Relying on Utalii Transport Company Ltd v NIC Bank Ltd, Masisi Muita v Damaris Wanjiku Njeri and Kenya Shell Ltd v Kibiru, the court held that the applicant had not met the threshold for stay and that a successful litigant should not be denied the fruits of judgment. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the application was filed without inordinate delay

Holding

The 14-month delay between the judgment of 11th December 2019 and the application of 12th February 2021 was inordinate and unexplained

Reasoning

The court compared the date of delivery of judgment (11th December 2019) with the filing date of the application (12th February 2021) and found a delay of 14 months. The applicant offered no explanation for the delay, and the court held that in the absence of any explanation it could not exercise its discretion in the applicant's favour, applying the test in Utalii Transport Company Ltd v NIC Bank Ltd that delay must be excessive compared to normality.

p. 3
02

Whether the applicant demonstrated substantial loss

Holding

The applicant failed to demonstrate any substantial loss; he neither resides on the land nor conducts business there nor holds title

Reasoning

Although the applicant claimed to have developed the land, built his matrimonial home and farmed it, the court found on the record that the temporary structures did not amount to residence or vital business, and he held no registered title. Relying on Masisi Muita v Damaris Wanjiku Njeri and Kenya Shell Ltd v Kibiru, the court held that without evidence of substantial loss the applicant had not met the threshold, since a successful litigant should not be denied the fruits of judgment.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must satisfy all the conditions in Order 42 Rule 6(2), including that the application was made without unreasonable delay and that substantial loss will result if stay is not granted
  • Unexplained delay of fourteen months after delivery of judgment amounts to inordinate delay for purposes of an application for stay of execution
  • Substantial loss is the cornerstone of the jurisdiction to grant stay; the applicant must demonstrate the substantial loss he will suffer if stay is not granted

Court orders

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  1. 1.The application dated 12th February 2021 seeking stay of execution of the judgment of 11th December 2019 and decree arising therefrom is dismissed

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder XLI Rule 4 (as cited in Kenya Shell Ltd v Kibiru)

Cases cited (11)

  • Chairman Co-Operative Tribunal & 8 Others Ex-Parte Management Committee Konza Ranching & Farming Co-Operative Society Ltd
    (2014) eKLR
  • Stephen Somek Takwenyi & Another -vs- David Mbuthia Githare & 2 Others
    Nairobi of 2009
  • Madara Evans Okanga Dondo versus Housing Finance Company of Kenya
    (2005) eKLR
  • Hassan Nyanje Charo v Khatib Mwashetani & 3 others
    [2014] eKLR
  • Absalom Dova versus Tarbo Transporters
    (2013) eKLR
  • Gianfranco Manenthi & another vs. Africa Merchant Assurance Company Ltd
    (2019) eKLR
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    [2014] eKLR
  • Christopher Kendagor v Christopher Kipkorir
    Eldoret E&L 919 of 2012
  • Utalii Transport Company Ltd & 3 Others -vs- NIC Bank Ltd & Another
    2014 eKLR
  • Masisi Muita -vs- Damaris Wanjiku Njeri
    Muranga Civil Appeal No. 107 of 2015 [2016] eKLR
  • Kenya Shell Limited vs. Kibiru
    [1986] KLR 410
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending intended appeal)

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, "Caleb K. Kipkorir Bett v Joseph Wanjau [2021] KEELC 2477 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2477/eng@2021-07-21

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