Michael Lekakeny Ole Kisasy v Jackson Serian & 3 others [2021] KEELC 2653 (KLR)
The bottom line
#The High Court paused execution of a 2018 land judgment because the winning party had started sub-dividing the land, which would have made the appeal pointless.
What this practically means
#Executive summary
#Key legal issues
#Undue delay
The application was filed timeously; the Applicant applied for and obtained proceedings, so there was no delay.
The court found the Applicant diligent, having applied for and obtained the proceedings before filing the application, and therefore concluded the application was filed in time.
Substantial loss
The Respondent did not rebut the assertion that he had commenced sub-division/hiring out of 35 acres of the suit land, so the Applicant would suffer substantial loss and the appeal would be rendered nugatory unless the land is preserved.
The Applicant asserted the Respondent had begun sub-dividing and hiring out 35 acres of the suit land; the Respondent did not contradict this. Because the land is emotive and a factor of production and could be further transferred or encumbered, the court found substantial loss established and the appeal at risk of being nugatory.
Security for costs
The Applicant stated willingness to abide and provide security for costs; the court did not record a distinct finding or specify security in the final order.
The affidavit stated the Applicant was willing to provide security for costs, satisfying that ground, though the final order does not specify any security terms.
Legal principles established
#- For a stay of execution under Order 42 to succeed, the Applicant must demonstrate substantial loss, that the application was filed without undue delay, and must provide security for costs.
- Substantial loss is what has to be preserved by preserving the status quo because such loss will render the appeal nugatory.
Court orders
#- 1.There be a stay of execution of the judgment dated 30/7/2018 pending the hearing and determination of the Appeal
- Jurisdiction invoked
- Order 42 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Lekakeny Ole Kisasy v Jackson Serian & 3 others [2021] KEELC 2653 (KLR)", Case Analysis (2021). Notice of Motion dated 6th November, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2653/eng@2021-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.