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ELCDismissedELC Appeal No. 23 of 2020· [2021] KEELC 2656 (KLR)

Emmanuel Lekakeny Kayo v Oramat Ole Sentu [2021] KEELC 2656 (KLR)

Environment and Land Court
29 June 2021
MKMohamed N. Kullow
2,305 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kilgoris court refused to halt an eviction on appeal, ruling that claims of harm must be backed by real evidence, not just assertions.

What this practically means

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Executive summary

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The Appellant, Emmanuel Lekakeny Kayo, moved the Environment and Land Court at Kilgoris by Notice of Motion dated 19/8/2020 seeking stay of execution of the ruling and order of 13/8/2020 in Kilgoris PMC ELC No. 23 of 2018, which had directed his eviction from LR Transmara/Olomismis/769, and alternatively review, variation or setting aside of that order. He argued he had an arguable appeal, that enforcement would affect land parcel 769 instead of 766, and that he had deposited Kshs. 100,000/= as security, albeit late and in piecemeal contrary to court directions. The Respondent, Oramat Ole Sentu, opposed, contending the application was sub judice given a parallel stay application in Narok ELC Appeal No. 5(B) of 2019, that the court lacked jurisdiction to review the trial court's ruling on appeal, and that parcel 769 belonged to a third party. Applying Order 42 rule 6 of the Civil Procedure Rules and the principles in Butt v Rent Restriction Tribunal and Samvir Trustee Limited v Guardian Bank Limited, the court found the Appellant had filed his appeal promptly but had not proved substantial loss. On the sub judice question under section 6 of the Civil Procedure Act, the court found the parties, grounds and prayers in the two applications were similar and the earlier-filed application should proceed. The application was dismissed in its entirety, with the Kshs. 100,000/= deposit transferred to ELC Appeal 5(B) of 2020 as security for costs. No costs order was pronounced.

Key legal issues

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01

Whether the Appellant was entitled to stay of execution pending appeal

Holding

Stay refused; the Appellant did not demonstrate substantial loss, though the application was made without unreasonable delay

Reasoning

Applying Order 42 rule 6 and Butt v Rent Restriction Tribunal, the court held stay is discretionary. The Appellant failed to prove substantial loss arising from the trial court's failure to order a survey of boundaries. Filing the Memorandum of Appeal six days after the ruling satisfied the requirement of no unreasonable delay, but without substantial loss the application failed.

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02

Whether the application was sub judice

Holding

Yes; a parallel application in ELC Appeal 5(B) of 2019 covering the same parties, grounds and prayers was already pending

Reasoning

Applying section 6 of the Civil Procedure Act, the court found two suits existed between the same parties over the same subject matter, with the earlier (ELC Appeal 5(B) of 2019, filed 6/7/2020) pending. The later suit (ELC 23 of 2020, filed 19/8/2020) ought to await determination of the earlier one to avoid conflicting decisions and abuse of process.

p. 3

Legal principles established

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  • A party invoking the doctrine of res sub-judice must establish more than one suit over the same subject matter, that one was instituted before the other, that both are pending before courts of competent jurisdiction, and that the suits are between the same parties or their representatives
  • An applicant for stay of execution must demonstrate substantial loss with evidence, not mere assertions

Court orders

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  1. 1.The Notice of Motion application dated 19/8/2020 is dismissed
  2. 2.The Kshs. 100,000/= deposited in ELC 23 of 2020 be transferred to ELC 5(B) of 2020 to be apportioned as security for costs pending hearing and determination of ELC Appeal Number 5(B) of 2020

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 42 rule 6(2)

Cases cited (2)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Samvir Trustee Limited v Guardian Bank Limited
    Nairobi (Milimani) HCCC No. 795 of 1997
On appeal from
Kilgoris Principal Magistrate's Court (ELC)
Kilgoris PMC ELC No. 23 of 2018
Jurisdiction invoked
Appellate/stay jurisdiction under Order 42 rule 6 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution invoked by the applicant

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, "Emmanuel Lekakeny Kayo v Oramat Ole Sentu [2021] KEELC 2656 (KLR)", Case Analysis (2021). ELC Appeal No. 23 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2656/eng@2021-06-29

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