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ELCPartially Allowed· [2021] KEELC 4230 (KLR)

Joseph Kipchirchir Birir & another v Risper Jerotich Kiptum [2021] KEELC 4230 (KLR)

Environment and Land Court of Kenya
22 February 2021
CYC.K. Yano
2,290 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 Kenyan landowner who lost her case won a pause on eviction, showing courts will halt execution when an appeal would otherwise be pointless.

What this practically means

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Executive summary

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This was a Notice of Motion dated 9th July 2020 by the defendant/applicant seeking stay of execution of a judgment and decree delivered by the Environment and Land Court at Mombasa on 8th July 2020, which had awarded the plaintiffs/respondents vacant possession and a permanent injunction over land parcel Kilifi/Mtwapa/3834, pending the applicant's intended appeal to the Court of Appeal. The applicant, who has occupied the land since 2002 with permanent stone houses, a shop, fish pond, borehole and farming activities, argued she would be rendered homeless and the appeal nugatory if evicted. The respondents opposed, contending she occupied the land merely as their employee, has another rented home, and that the application only delayed their fruits of judgment. The court, applying Order 42 Rule 6 of the Civil Procedure Rules, found the application filed two days after the decree was timeous; that eviction and demolition of the applicant's developments would amount to substantial loss and render the appeal nugatory; and that because the suit property is registered in the respondents' names, no further security for due performance of the decree was necessary. Relying on Butt v Rent Restriction Tribunal, Kenya Shell Limited and Absalom Dora, the court allowed the application and granted the stay, with costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Whether the application was brought without undue delay

Holding

The application was filed two days after the decree and was therefore timeous

Reasoning

The decree appealed against was delivered on 8th July 2020 and the application was filed on 10th July 2020. A two-day interval satisfied the first prerequisite under Order 42 Rule 6(2)(a), demonstrating that the applicant acted timeously in seeking stay pending appeal.

p. 2
02

Whether substantial loss would result to the applicant

Holding

Yes - the applicant risks eviction and demolition of her developments, rendering the appeal nugatory

Reasoning

The applicant has resided on the suit property for years with permanent houses, a shop and a fish pond. Execution by way of eviction and demolition would cause substantial loss and render the appeal nugatory, satisfying the second prerequisite of Order 42 Rule 6.

p. 3
03

Whether security for due performance of the decree should be ordered

Holding

No security ordered since the suit property is registered in the respondents' names

Reasoning

Although Order 42 Rule 6(2)(b) contemplates security, the court found registration of the suit property in the respondents' names sufficient to preserve their interest pending appeal, and declined to order additional security in the circumstances.

p. 3

Legal principles established

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  • Stay of execution pending appeal requires that the application be made without undue delay, that substantial loss be shown, and that security be given as ordered by the court
  • Substantial loss is the cornerstone of the jurisdiction to grant stay

Court orders

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  1. 1.Stay of execution of the decree and judgment delivered on 8th July 2020 pending hearing and determination of the appeal
  2. 2.Costs of the application to abide the outcome of the appeal and follow the event

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 42 Rule 6
  • Constitution of KenyaArticle 159

Cases cited (10)

  • Butt -v- Rent Restriction Tribunal
    (1982) KLR 417
  • Beatrice Ndunguri Mwai & Another -v- Sicily Wawira Titus & Another
    (2020) eKLR
  • Mugar -v- Kunga
    (1988) KLR
  • Wanjala Ojombo Mubweka & Another -v- Leonard Ongweni Barasa
    (2020) eKLR
  • Wairimu Mburu -v- Chege Thaiya
    (2019) eKLR
  • Delamere Estates -v- Ndungu Njai & Others
    (2006) eKLR
  • Wellington Lusweti Barasa & 75 Others -v- Lands Limited & Another
    (2014) eKLR
  • Mbira -v- Gachuhi
    (2002) 1EA 138
  • Kenya Shell Limited -v- Benjamin Karuga Kigibu & Ruth Wairimu
    (1982-1988) KAR 108
  • Absalom Dora -v- Turbo Transporters
    (2013) eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules

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, "Joseph Kipchirchir Birir & another v Risper Jerotich Kiptum [2021] KEELC 4230 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4230/eng@2021-02-22

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