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ELCAllowedELC No. 145 of 2017· [2022] KEELC 1019 (KLR)

Stephen Kimitei arap Sang v Dominic Kiprotich & 8 others [2022] KEELC 1019 (KLR)

Environment and Land Court of Kenya
3 March 2022
840 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret on a Notice of Motion dated 4th February 2022 by the 8th and 9th Defendants seeking stay of execution pending appeal. The underlying suit was compromised in 2017 on terms that the Plaintiff be paid Kshs 3,000,000. The Applicants, settled on the suit property, paid Kshs 2,290,000 with a balance allegedly of Kshs 500,000. By a ruling of 20th January 2022 the court declined an extension of time and ordered the Applicants' eviction and demolition of their structures within 45 days. The Applicants appealed to the Court of Appeal and sought stay. The Respondent opposed, arguing the application was vexatious, that the Applicants had earlier sought a refund of monies paid (which the Respondent's advocate remitted less retained sums of Kshs 250,000 as costs and Kshs 760,000 for demolition), and could not both seek refund and stay. In a further affidavit the Applicants contended the entire purchase price had been paid and that their advocate did not act for all Defendants. Applying the settled conditions for stay - no unreasonable delay, substantial loss, and security - the court found the application filed within a reasonable time, held that eviction and demolition would render the appeal nugatory, and accepted the offer of security. It allowed the motion, granting stay of execution pending appeal on condition that the Applicants deposit Kshs 300,000 in a joint interest-earning account in the names of the advocates within 45 days, failing which the stay lapses. Costs of the application were to abide the outcome of the appeal.

Key legal issues

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01

Reasonable delay in filing the stay application

Holding

The application filed on 4th February 2022, following the ruling of 20th January 2022, was within a reasonable time.

Reasoning

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.

p. 2
02

Substantial loss

Holding

Existing eviction and demolition orders would render the Applicants' intended appeal nugatory, amounting to substantial loss.

Reasoning

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.

p. 2
03

Security for due performance of the decree

Holding

A conditional stay was granted on security of Kshs 300,000 to be deposited in a joint interest-earning account within 45 days.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Stay of execution granted pending the hearing and determination of the appeal
  2. 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. 3.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 (implied by the conditions for stay)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "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.