Joshua Kamoing v Simon Barchok & 3 others [2021] KEELC 3237 (KLR)
The bottom line
#A Kenyan land court refused to pause a judgment because the applicants couldn't prove they'd suffer real, unfixable loss beyond simply living on the land.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants demonstrated substantial loss
They did not; mere residence on the land and potential claims by undisclosed third-party purchasers do not constitute substantial loss incapable of compensation by damages
The court found the Applicants entitled to at least 47.7 acres of 71.6 acres while the Respondent was entitled to only 23.8 acres. The Applicants had uncontrovertedly continued selling portions after judgment. Loss from third-party litigation was compensable in damages. Residing on the land is insufficient; the mischief of Order 42 Rule 6 is to preserve the status quo where the appeal would otherwise be rendered nugatory.
Whether the application was made without unreasonable delay
It was; the application was filed on 4th February 2021 within the time frame given by the court after dismissal of the original application on 28th January 2021
The court found the second condition of Order 42 Rule 6(2) satisfied, noting the application followed the court's earlier dismissal of the original application dated 10th June 2020 and was filed within the leave granted.
Whether security for due performance of the decree had been given
The offer to surrender original title deeds was a sign of good faith, but the determination of security is a matter for the court's discretion
The Applicants argued that no security was needed for a non-monetary decree between family members, offering the original title deeds. The court held that while proposing security suffices, the nature of security is for the court to determine. The application nonetheless failed on the first condition.
Legal principles established
#- Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory
- It is not enough for an applicant to say that they live or reside on the suit land; they must show the substantial loss they stand to suffer if the decree is executed
- The court must balance the applicant's interest in preserving the status quo against the respondent's interest in enjoying the fruits of judgment
Court orders
#- 1.The Applicants' Notice of Motion dated 3rd February 2021 seeking stay of execution of the judgment delivered on 20th May 2020 is denied and dismissed with no costs
- 2.The Applicants shall prepare, file and serve their record of Appeal within 45 days upon delivery of the ruling
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3, 3A, 63(b) & (e) and 66 of the Civil Procedure Act; Rule 5 of the Court of Appeal Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Kamoing v Simon Barchok & 3 others [2021] KEELC 3237 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3237/eng@2021-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.