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ELCStruck OutNotice of Motion dated 10th June 2020 (arising from judgment delivered 20th May 2020)· [2021] KEELC 4624 (KLR)

Joshua Kamoing v Simon Barchok, Daniel Barchok, Philip Kipsang Maritim & Florence Chepkwony (Sued in her Capacity as The Administrator of The Estate of Paul Kipyegon Chepkwony (Deceased) (Environment & Land Case 103 of 2017) [2021] KEELC 4624 (KLR)

Environment and Land Court
28 January 2021
MOM.C. Oundo
1,007 words in judgment
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The bottom line

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A Kericho court struck out a landowner's stay application because it cited the wrong legal rule, losing precious protection despite a pending appeal.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Kericho (M.C. Oundo, J) on a Notice of Motion dated 10th June 2020 in which the Applicants, described as Applicant/Appellants following a judgment delivered on 20th May 2020, sought a stay of execution of that judgment and all consequential orders pending their intended appeal, together with an order directing the Land Registrars Kericho and Bomet to register a restriction over LR No. Kericho/Boito/140 (and/or resultant titles) barring transfer, mutation or any dealings pending the appeal. The motion was anchored on Sections 1A, 1B, 3, 3A, 63(b) & (e) and 66 of the Civil Procedure Act, Rule 5 of the Court of Appeal Rules 2010 and Orders 22 Rule 22 and 51 of the Civil Procedure Rules, supported by the affidavit of Philip Kipsang Maritim. The Respondent opposed it as bad in faith and meritless. Interim stay orders had been issued on 15th June 2020 and the parties filed written submissions. The Court examined Order 22 Rule 22 and held that although that provision allows a court to stay execution of a decree it passed, an applicant seeking a stay pending an intended appeal must invoke Order 42 Rule 6(1) of the Civil Procedure Rules. Having come to Court under the wrong provision, the application was incompetent. The Court struck out the application dated 10th June 2020 with costs to the Respondent. Dated and delivered at Kericho on 28th January 2021.

Key legal issues

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Whether a stay of execution pending an intended appeal may be sought under Order 22 Rule 22 of the Civil Procedure Rules

Holding

No. Order 22 Rule 22 empowers a court to stay execution of a decree it passed or that was sent to it for execution; a stay pending appeal must be sought under Order 42 Rule 6(1). The application was therefore incompetent.

Reasoning

The Court observed that the power to stay execution is discretionary and that Order 22 Rule 22 applies where the court itself passed the decree or where a decree has been sent to it for execution. Because the Applicants sought a stay pending an intended appeal, the appropriate provision was Order 42 Rule 6(1), which imposes conditions of substantial loss, absence of unreasonable delay and security. Having invoked the wrong provision, the application was incompetent.

p. 2

Legal principles established

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  • An application for stay of execution pending an intended appeal must be brought under Order 42 Rule 6(1) of the Civil Procedure Rules, which requires demonstration of substantial loss, absence of unreasonable delay, and provision of security; Order 22 Rule 22 applies to stays of decrees the executing court itself passed

Court orders

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  1. 1.The application dated 10th June 2020 is struck out
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(b) & (e), 66
  • Court of Appeal Rules 2010Rule 5
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (1)

  • Chris Munga N. Bichage v Richard Nyagaka Tongi & 2 Others
    [2013] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 63(b) & (e), 66 of the Civil Procedure Act, Rule 5 of the Court of Appeal Rules 2010, and Order 22 Rule 22 and Order 51 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, "Joshua Kamoing v Simon Barchok, Daniel Barchok, Philip Kipsang Maritim & Florence Chepkwony (Sued in her Capacity as The Administrator of The Estate of Paul Kipyegon Chepkwony (Deceased) (Environment & Land Case 103 of 2017) [2021] KEELC 4624 (KLR)", Case Analysis (2021). Notice of Motion dated 10th June 2020 (arising from judgment delivered 20th May 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4624/eng@2021-01-28

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