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ELCAllowedEnvironment & Land Case 129 of 2021· [2023] KEELC 16071 (KLR)

Yego & another v Kapsabet Municipality Board & 6 others

Environment and Land Court of Kenya
8 March 2023
MMM. N. MWANYALE
1,345 words in judgment
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The bottom line

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A Kenyan court paused eviction proceedings because the property owners appealed, but only after they deposited their title documents as security.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Kapsabet (M.N. Mwanyale, J) on a Notice of Motion dated December 8, 2022 in which the Plaintiffs (Prof Josephat Kipkoech Yego and Emily Chepleting Yego) sought stay of execution of the decree arising from the Court's judgment of October 27, 2022, which had dismissed their claim and allowed the Defendants' counter-claim, pending an intended appeal to the Court of Appeal. The application was brought under Order 42 Rule 6 of the Civil Procedure Rules. The 7th Defendant (David K Serem) in effect supported the motion, while the County Secretary of the 5th Defendant (Francis K Sang) opposed it, contending the suit land was set aside for low density residential housing and that the Applicants had not demonstrated loss. The Court framed three issues: substantial loss, undue delay, and security. It found substantial loss established because the Respondents did not dispute that implementation of the judgment would evict the Applicants; it found no undue delay because the application, filed one month and 12 days after judgment, fell within the 45-day stay window granted at judgment; and on security it ordered deposit in Court, within 30 days, of the certificates of lease over plots KAPSABET TOWNSHIP/536-546 registered in the 1st Applicant's name, failing which the stay would automatically lapse. Costs of the application were to abide the outcome of the appeal. The application was allowed.

Key legal issues

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01

Substantial loss

Holding

Substantial loss was established because the Applicants faced imminent eviction and destruction of property if the decree was executed.

Reasoning

The Applicants averred imminent eviction and destruction of properties. The Respondents contended the land was government land set aside for low density housing but did not dispute that implementation of the judgment would evict the Applicants. The Court therefore found substantial loss and damage would result absent a stay pending appeal.

02

Undue delay

Holding

The application filed one month and 12 days after judgment was within the 45-day stay window granted at judgment, hence without undue delay.

Reasoning

Judgment was delivered on October 27, 2022 and the application filed on December 9, 2022, a lapse of one month 12 days. The Court's record showed a 45-day stay had been granted at judgment, so the application fell within that window and satisfied the no-undue-delay condition under Order 42 Rule 6(2)(a).

p. 3
03

Security

Holding

Deposit of the certificates of lease over the suit properties in Court within 30 days was ordered as security, failing which the stay lapses.

Reasoning

The Applicants expressed willingness to abide by terms imposed by the Court. Certificates of lease over the suit properties, registered in the 1st Applicant's name, had been produced in evidence. As the value of the properties was not ascertainable, the Court exercised its discretion to order deposit of the lease certificates as security.

p. 3

Legal principles established

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  • Where implementation of a judgment will lead to eviction of the applicant, substantial loss is demonstrated for purposes of Order 42 Rule 6.
  • An application for stay filed within a stay window granted at judgment is made without undue delay.

Court orders

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  1. 1.Stay of execution of the decree of October 27, 2022 pending hearing and determination of the appeal at the Court of Appeal
  2. 2.Certificates of lease over plot numbers KAPSABET TOWNSHIP/536-546 in the name of the 1st Applicant to be deposited in Court within 30 days as security
  3. 3.If security is not deposited within the stipulated time, the stay of execution orders shall automatically lapse
  4. 4.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (2)

  • Kinyunjuri Muguta –vs- Wotuku Muguta
    (2018) eKLR

    Conditions for grant of stay of execution pending appeal

  • John Cheruiyot Mursoi vs Austine Chepkwony Murei and Another
    (2020) eKLR

    Conditions for grant of stay of execution under Order 42 Rule 6

Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "Yego & another v Kapsabet Municipality Board & 6 others", Case Analysis (2023). Environment & Land Case 129 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16071/eng@2023-03-08

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