Wilfred Kibet Kanda & another v Benjamin Kiprotich [2021] KEELC 3882 (KLR)
The bottom line
#A Kenyan land court refused to pause execution of an order because the applicants proved nothing beyond living on the land and refused to offer security.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss as a condition for stay of execution
The applicant did not demonstrate that substantial loss would result if stay was not granted; mere occupation of the land is insufficient
The court held that an applicant must establish substantial loss, not merely assert it. Reliance was placed on Peter Rugu Gikanga v Weston Gitonga and the Court of Appeal's decision in Charles Wahome Gethi, which held that living on suit land is not enough; the applicant must show the specific loss to be suffered upon execution of the decree.
Security for due performance of the decree
The applicant's submission that no security was required for a temporary order disentitled it from the discretion to grant stay
Under Order 42 Rule 6(2)(b), an applicant must be ready to furnish such security as the court orders. The applicants' counsel argued that no security was applicable because the order sought to be stayed was temporary and not final; the court found this refusal to meet a mandatory condition fatal to the application.
Stay of proceedings pending appeal
Stay of proceedings is a matter of judicial discretion exercised in the interest of justice, weighing expeditious disposal, arguability of the appeal and judicial time
Relying on Re Global Tours & Travel Ltd (Ringera, J), the court observed that the sole question is whether it is in the interest of justice to order a stay of proceedings, on what terms, and having weighed the pros and cons. However, having found the stay of execution threshold unmet, the court dismissed the entire application.
Legal principles established
#- An applicant for stay of execution must satisfy all the conditions in Order 42 Rule 6: application without undue delay, demonstration of substantial loss, and willingness to furnish security
- Occupation of suit land is not, by itself, proof of substantial loss for purposes of an application for stay of execution
- A party who disavows the obligation to furnish security for due performance of the decree cannot benefit from the court's discretion to grant stay
Court orders
#- 1.The application dated 15th September 2020 for stay of execution and stay of proceedings pending appeal is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Environment and Land Court, Iten
- Iten ELC No. 20 of 2018
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (2010)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilfred Kibet Kanda & another v Benjamin Kiprotich [2021] KEELC 3882 (KLR)", Case Analysis (2021). Iten ELC Appeal (arising from Iten ELC No. 20 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3882/eng@2021-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.