Stephen Kimitei arap Sang v Dominic Kiprotich & 8 others [2022] KEELC 1019 (KLR)
The bottom line
#The court paused eviction orders because an appeal was pending, but only after the occupants paid Kshs 300,000 into a joint account as security.
What this practically means
#Executive summary
#Key legal issues
#Reasonable delay in filing the stay application
The application filed on 4th February 2022, following the ruling of 20th January 2022, was within a reasonable time.
The court compared the date of the ruling (20 January 2022) with the date of filing the stay application (4 February 2022) and found the interval short enough to satisfy the delay requirement for stay of execution pending appeal.
Substantial loss
Existing eviction and demolition orders would render the Applicants' intended appeal nugatory, amounting to substantial loss.
The Applicants had filed an appeal to the Court of Appeal against the ruling ordering eviction and demolition. The court reasoned that if those orders were executed before the appeal was heard, the appeal would be rendered nugatory, satisfying the substantial-loss limb.
Security for due performance of the decree
A conditional stay was granted on security of Kshs 300,000 to be deposited in a joint interest-earning account within 45 days.
The Applicants offered security. The court granted the stay but conditioned it on the deposit of Kshs 300,000 in a joint interest-earning account in the names of the advocates within 45 days, failing which the stay lapses automatically, protecting the decree-holder.
Legal principles established
#- For stay of execution pending appeal the court must be satisfied of three conditions: no unreasonable delay, substantial loss, and security for due performance of the decree.
- Eviction and demolition orders render a pending appeal nugatory if executed, constituting substantial loss.
Court orders
#- 1.Stay of execution granted pending the hearing and determination of the appeal
- 2.Applicants to deposit Kshs 300,000 in a joint interest-earning account in the names of the advocates within 45 days failing which the stay automatically lapses
- 3.Costs of the application to abide the outcome of the appeal
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Kimitei arap Sang v Dominic Kiprotich & 8 others [2022] KEELC 1019 (KLR)", Case Analysis (2022). ELC No. 145 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1019/eng@2022-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.