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ELCOtherNot stated in judgment (application dated 23rd September 2021)· [2022] KEELC 306 (KLR)

Joshua Kamoing v Simon Barchok & 3 others [2022] KEELC 306 (KLR)

Environment and Land Court
24 March 2022
MOM.C. Oundo
1,180 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court paused enforcement of a 2020 land judgment until the Court of Appeal decides a pending stay application.

What this practically means

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Executive summary

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The Applicant, Joshua Kamoing, moved the Environment and Land Court by Notice of Motion dated 23rd September 2021, premised on Sections 1A, 3A and 98 of the Civil Procedure Act, Order 22 of the Civil Procedure Rules and Article 159 of the Constitution. He sought orders directing the District Land Surveyor to visit, survey and subdivide suit properties Kericho/Boito/140 and Kericho/Boito/1218 and prepare mutation forms to implement the court's judgment and decree of 6th May 2020, which had entitled him to a third of the total acreage. He further sought that the Deputy Registrar execute the consent, mutation and transfer forms, and that the OCS Konoin police station provide security during the exercise. He argued there was no stay in force, the earlier stay application having been dismissed on 21st May 2021 with no stay from the Court of Appeal. The 2nd Respondent opposed, deponing that a Notice of Appeal had been lodged and that a stay of execution application in Civil Appeal No. E36 of 2021 was pending inter-parties hearing before the Court of Appeal on 8th November 2021; executing the decree beforehand would render the appeal nugatory. The court framed a single issue: whether to order execution of the 6th May 2020 judgment pending the Court of Appeal application. Guided by Order 22 rules 6 and 22, the court declined to rule either way at that stage, holding the application in abeyance pending the Court of Appeal's decision, with a mention after 30 days. No costs order was made.

Key legal issues

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Whether execution of the judgment of 6th May 2020 should proceed pending determination of the stay application in the Court of Appeal

Holding

Execution was deferred; the application was held in abeyance pending the Court of Appeal's decision on the stay application, with a mention after 30 days

Reasoning

The court noted that a stay of execution application was pending before the Court of Appeal, fixed for inter-parties hearing on 8th November 2021. Having regard to Order 22 rules 6 and 22 of the Civil Procedure Rules, and the possibility that the appeal process could render immediate execution nugatory, the court opted to indulge the respondents and revisit the application after the Court of Appeal's decision.

p. 2

Legal principles established

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  • A decree-holder seeking execution must apply to the court which passed the decree, per Order 22 rule 6 of the Civil Procedure Rules
  • The court to which a decree has been sent for execution may stay execution upon sufficient cause being shown, per Order 22 rule 22

Court orders

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  1. 1.The applicant's application dated 23rd September 2021 is held in abeyance pending the decision of the Court of Appeal on the stay application
  2. 2.The matter to be mentioned after 30 days to confirm the status of the decision of the Court of Appeal and for further directions

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A and 98
  • Civil Procedure RulesOrder 22 rule 6
  • Civil Procedure RulesOrder 22 rule 22
  • Constitution of KenyaArticle 159
Jurisdiction invoked
Sections 1A, 3A and 98 of the Civil Procedure Act; Order 22 rules 6 and 22 of the Civil Procedure Rules; Article 159 of the Constitution

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 & 3 others [2022] KEELC 306 (KLR)", Case Analysis (2022). Not stated in judgment (application dated 23rd September 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/306/eng@2022-03-24

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