Bor v Chebusit
The bottom line
#A Kenyan landowner seeking to pause eviction pending appeal lost because he proved no concrete risk of loss, gave no security, and filed no draft appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant demonstrated substantial loss
No substantial loss demonstrated; no evidence the matrimonial home was at risk of demolition or that the Respondent would alienate the suit premises.
The Applicant relied on occupation since 1971 and threatened demolition of his matrimonial home. The court found no evidence that the home was at risk of demolition or that the Respondent intended to alienate the land. Merely residing on the land since 1971, without proof of ownership, was insufficient to establish substantial loss.
Whether the application was brought without undue delay
Yes - judgment was delivered February 10, 2022 and the application filed February 22, 2022, so delay condition was satisfied.
The court noted the judgment was delivered on February 10, 2022 and the application filed on February 22, 2022, and thus found the application was brought without undue delay, satisfying the second condition under Order 42 Rule 6(2).
Whether security for due performance was furnished
No security was furnished; the Applicant only pledged to furnish such security as the court may direct, which did not satisfy the mandatory condition.
Order 42 Rule 6(2)(b) requires security in mandatory terms. The Applicant had not furnished any security but merely pledged willingness to do so. The court treated this as non-compliance with the third condition for the grant of stay pending appeal.
Whether the intended appeal was arguable
Arguability could not be discerned as no Memorandum of Appeal was filed or annexed; and even if the appeal succeeded, the Applicant would regain occupation, so the appeal would not be rendered nugatory.
The Applicant asserted an arguable appeal but did not annex a Memorandum of Appeal. Following Mwangi v Nyali Golf & Country Club, the court held arguability could not be assessed from the affidavit alone. Further, if the appeal succeeded, the Applicant would be allowed back on the land, so the appeal would not be nugatory.
Legal principles established
#- The purpose of a stay of execution pending appeal is to preserve the subject matter in dispute so the appeal, if successful, is not rendered nugatory.
- A successful party is ordinarily entitled to the fruits of the judgment, and stay is discretionary and equitable.
- Without an annexed Memorandum of Appeal, arguability of an intended appeal cannot be discerned.
Court orders
#- 1.The Application dated February 18, 2022 is dismissed with costs.
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bor v Chebusit", Case Analysis (2022). Environment and Land Appeal E001 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14444/eng@2022-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.