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ELCDismissedNot stated in the excerpt (ELC Eldoret)· [2022] KEELC 861 (KLR)

John Chelimo Kipkener v Moses Kibet Kipkurui;Eljiah Kiplagat Keitany (Interested Party) [2022] KEELC 861 (KLR)

Environment and Land Court
16 March 2022
2,347 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Eldoret Environment and Land Court refused to pause enforcement of a land judgment because the applicant waited over four months and could not show he would suffer substantial loss.

What this practically means

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Executive summary

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The Plaintiff, John Chelimo Kipkener, moved the Environment and Land Court at Eldoret by notice of motion dated 24th March 2021 seeking a stay of execution of the decree arising from the judgment delivered on 11th November 2020, pending an intended appeal. The judgment had dismissed his claim, declared the Interested Party, Elijah Kiplagat Keitany, the legal owner of the suit land, issued a permanent injunction against the Plaintiff and Defendant, and ordered the Defendant to refund the Plaintiff Kshs. 1.9 million plus interest, with costs to the Defendant. The Interested Party opposed the application, contending there was unreasonable delay of about four months, no demonstrated substantial loss, and that he was already in occupation of the land. The court framed two issues: whether the Plaintiff established a case for stay pending appeal, and costs. The court found that although a valid notice of appeal was on the record (filed 25th November 2020), the delay of slightly over four months was unreasonable and inordinate, distinguishing Amal Hauliers and applying Rishard Abdulrehman Khator. On substantial loss, applying James Wangalwa and Halai v Thornton & Turpin, the court held that the Plaintiff failed to prove substantial loss, as the Interested Party was in occupation and the Plaintiff's alleged loss was not substantial. The court also held that invocation of inapplicable provisions was not fatal, substantive justice prevailing. The application was dismissed with costs to the Interested Party under section 27 of the Civil Procedure Act. Judgment delivered virtually on 16th March 2022 by S.M. Kibunja, J.

Key legal issues

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01

Whether the application was filed without unreasonable delay

Holding

The delay of slightly above four months was unreasonable and inordinate; the 30-day temporary stay granted at judgment had long lapsed and the plaintiff gave no explanation.

Reasoning

The court weighed conflicting authorities: Amal Hauliers (four months not inordinate) versus Rishard Abdulrehman Khator (four months inordinate). Given the circumstances of the suit and the nature of the judgment altering the parties' relationship to the suit property, the court found the delay both unreasonable and inordinate. The plaintiff's assertion of no delay, without explaining the wait of over four months, was found wanting.

p. 2
02

Whether the Plaintiff demonstrated substantial loss

Holding

The Plaintiff failed to establish the substantial loss likely to be suffered absent a stay; he was not in occupation of the suit land, the Interested Party was.

Reasoning

Although the plaintiff claimed investments on the land would go to waste, his own affidavit showed the Interested Party had entered the land, a fact the Interested Party confirmed. The plaintiff's claim of possession in submissions contradicted his affidavit. Citing James Wangalwa & Another v Agnes Naliaka Cheseto, the court held that mere likelihood of loss or execution does not amount to substantial loss; the applicant must show the execution would irreparably affect the core of his position as a successful appellant.

p. 3
03

Whether failure to invoke Order 42 Rule 6 and to annex/serve the notice of appeal defeated the application

Holding

Non-invocation of Order 42 Rule 6 was not fatal since substantive justice prevails; and a valid notice of appeal dated 20th November 2020, filed 25th November 2020, was on the record despite not being annexed or served.

Reasoning

The motion cited sections 1A, 1B, 63(e), 79G CPA, Order 50 Rule 1 and Article 159, but not Order 42 Rule 6. The court held that invoking inapplicable law is not fatal, as the court must do substantive justice considering the matter on its merits under applicable law. On the notice of appeal, although not annexed or served, the record confirmed it was filed within 14 days of judgment and was therefore valid; the failure was one of attachment and service only.

p. 2

Legal principles established

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  • Invocation of inapplicable law is not fatal to an application; the court is bound to do substantive justice and consider the matter on its merits under the applicable law.
  • A stay of execution pending appeal is a matter of judicial discretion, exercised on sound basis, and the applicant bears the onus of proving the Order 42 threshold.
  • The loss alleged must be substantial; mere likelihood of some loss or the mere putting in motion of execution does not amount to substantial loss under Order 42 Rule 6.

Court orders

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  1. 1.The Plaintiff's notice of motion dated the 24th March 2021 is dismissed with costs to the Interested Party.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 50 Rule 1
  • Civil Procedure Actsections 1A, 1B
  • Civil Procedure Actsection 63(e)
  • Civil Procedure Actsection 79G
  • Civil Procedure Actsection 27
  • Constitution of KenyaArticle 159

Cases cited (7)

  • AMAL HAULIERS LIMITED V ABDULNASIR ABUKAR HASSAN
    [2017] eKLR
  • RISHARD ABDULREHMAN KHATOR V IDHA MARIE AHMED & 2 OTHERS
    [2020] eKLR
  • SOLOME NALIAKA WABWILE V ALFRED OKUMU MUSINAKA
    [2021] eKLR
  • ELENA DOUDOLADOVA KORIR V KENYATTA UNIVERSITY
    [2014] eKLR
  • Halai & Another v Thorton & Turpin (1963) Ltd
    [1990] KLR 365
  • Hassan Guyo Wakalo v Straman East Africa Ltd
    [2013] eKLR
  • James Wangalwa & Another V Agnes Naliaka Cheseto
    [2012] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; sections 1A, 1B, 63(e) and 79G of the Civil Procedure Act; Article 159 of the Constitution of Kenya

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, "John Chelimo Kipkener v Moses Kibet Kipkurui;Eljiah Kiplagat Keitany (Interested Party) [2022] KEELC 861 (KLR)", Case Analysis (2022). Not stated in the excerpt (ELC Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/861/eng@2022-03-16

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