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ELCDismissedIten ELC Appeal (arising from Iten ELC No. 20 of 2018)· [2021] KEELC 3882 (KLR)

Wilfred Kibet Kanda & another v Benjamin Kiprotich [2021] KEELC 3882 (KLR)

Environment and Land Court
4 March 2021
1,555 words in judgment
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The bottom line

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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

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Executive summary

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This ruling by M. A. Odenty, J, delivered at Eldoret on 4th March 2021, determined an application dated 15th September 2020 by the appellants/applicants seeking a temporary stay of proceedings and of execution of orders issued on 30th April 2020 in Iten ELC No. 20 of 2018, pending the hearing and determination of the appeal. The orders sought to be stayed restrained the defendants from digging on or interfering with land parcel E/Marakwet/Kapsowar/841. The application followed a ruling of 2nd September 2020 in which the lower court declined to grant stay. The applicants argued that they and their families were in continuous occupation of the land, which they depended on for daily upkeep, and that implementation of the orders would bar them from any use of the land including grazing. They relied on Order 42 Rule 6(2) of the Civil Procedure Rules and authorities including Butt v Rent Restriction Tribunal. Notably, the respondent's submissions addressed the main appeal rather than the stay application. The court held that an applicant must satisfy all the conditions of Order 42 Rule 6: filing without undue delay, demonstration of substantial loss, and readiness to furnish security. It found that the applicants had not demonstrated substantial loss, that occupation alone is not proof of substantial loss since it may be adjudged trespassory or illegal, and that counsel's submission that no security was required disentitled the applicants from the court's discretion. The application was dismissed with costs.

Key legal issues

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01

Substantial loss as a condition for stay of execution

Holding

The applicant did not demonstrate that substantial loss would result if stay was not granted; mere occupation of the land is insufficient

Reasoning

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.

p. 2
02

Security for due performance of the decree

Holding

The applicant's submission that no security was required for a temporary order disentitled it from the discretion to grant stay

Reasoning

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.

p. 2
03

Stay of proceedings pending appeal

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 15th September 2020 for stay of execution and stay of proceedings pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure Rules (2010)Order 42 Rule 6(2)

Cases cited (8)

  • Butt versus Rent Restriction Tribunal
    (1982) KLR 419
  • Jane Jeptoo Sawe versus Estate of Sylvester Kimagut Sang Represented by Jennifer Chebet Sang
    Civil App No. 49 of 2015
  • Anne Nieri Mwanai versus Muzaffer Musafee Essaiee & another
    (2014) eKLR
  • Kenya Tanzania Uganda Leasina Co. Ltd v Mukenya Ndunda
    [2013] eKLR
  • Kenya Commercial Bank Limited versus Sun City Properties Limited & 5 Others
    [2012] eKLR
  • Peter Rugu Gikanga & another v Weston Gitonga & 10 others
    [2014] eKLR
  • Charles Wahome Gethi vs Angela Wairimu Gethi
    Court of Appeal Civil Application No. NAI 302 of 2007 UR 205/2007
  • Re Global Tours & Travel Ltd
    HCWC No. 43 of 2000
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

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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, "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.