Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 67 of 2014· [2023] KEELC 18179 (KLR)

Kang’ethe v Ngeno & another

Environment and Land Court of Kenya
15 June 2023
2,302 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan landowner lost his bid to pause a court-ordered land transfer because he showed no real loss and offered no security.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Kericho (M.C. Oundo, J) determined a Notice of Motion dated July 12, 2022 by the Applicant, Paul Maina Kang’ethe, seeking stay of execution of the judgment delivered on June 30, 2022 pending the filing and hearing of his intended appeal. The application was brought under Order 22 Rule 22, Order 51 Rules 1 and 13(2) of the Civil Procedure Rules and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act. The Third Party/2nd Respondent opposed, arguing the Applicant had shown no substantial loss, offered no security, and was forum shopping, having filed a similar application in the Court of Appeal (Civil Application No E043 of 2022). The 1st Respondent filed written submissions but no replying affidavit; the court, applying the Supreme Court's decision in Konchellah v Sunkuli, held those submissions to be of no effect. Framing two issues, the court applied Order 42 Rule 6(2) and found that although the application was not inordinately delayed, the Applicant failed on two mandatory conditions: he demonstrated no substantial loss, being out of possession of the suit land since selling it in 1991, and he furnished no security. Balancing the discretion against denying a successful litigant the fruits of judgment, the court declined to grant stay and dismissed the application with costs on June 15, 2023.

Key legal issues

#
01

Whether the Applicant demonstrated substantial loss to warrant stay of execution

Holding

No substantial loss was demonstrated; the Applicant was not in possession or occupation of the suit land and no evidence of irreparable loss was provided

Reasoning

The court noted the Applicant had not been in possession or occupation of the suit land, having sold it in 1991. The orders required him to transfer the land to the 1st Respondent, and if he succeeded on appeal the Land Registrar could reverse the entry, so the appeal would not be rendered nugatory. No evidence of irreparable loss was adduced.

p. 4
02

Whether the application was brought without unreasonable delay

Holding

The application filed on July 12, 2022 was not inordinately delayed

Reasoning

The court computed the period between judgment delivery on June 30, 2022 and the filing of the application on July 12, 2022, and found the delay not inordinate in the circumstances. This condition was therefore satisfied, unlike the conditions of substantial loss and security.

03

Whether the Applicant furnished security for due performance of the decree

Holding

The Applicant did not furnish security, a mandatory condition under Order 42 Rule 6(2)(b)

Reasoning

The court found that Order 42 Rule 6(2)(b) imposes the furnishing of security in mandatory terms. The Applicant offered no security for the due performance of the decree, so this condition also failed, independently justifying refusal of stay.

p. 4
04

Effect of the 1st Respondent's written submissions filed without a replying affidavit

Holding

The written submissions were of no effect in the absence of a replying affidavit

Reasoning

Relying on the Supreme Court's decision in Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli, the court held that a replying affidavit is the foundational pleading on which submissions rest. The 1st Respondent having filed no replying affidavit, his written submissions opposing the application were of no effect.

p. 3

Legal principles established

#
  • An applicant for stay of execution pending appeal must satisfy the conditions of substantial loss, application without unreasonable delay, and furnishing of security under Order 42 Rule 6(2)
  • Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory
  • Written submissions filed without a replying affidavit are of no effect

Court orders

#
  1. 1.The Application dated July 12, 2022 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 51 Rule 13(2)
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A

Cases cited (5)

  • Butt vs Rent Restriction Tribunal
    [1979] eKLR

    Guidelines for stay of execution; discretionary relief designed so no one is worse off by an order of court

  • Global Tours and Travel Limited vs Five Continents Travel Limited
    [2015] eKLR

    Court cannot speculate on arguable issues where no memorandum of appeal is attached

  • Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others
    [2018] eKLR

    A replying affidavit is the foundational pleading; submissions without it are of no effect

  • Mukuma vs Abuoga
    (1988) KLR 645

    Substantial loss is what must be prevented by preserving the status quo as it would render the appeal nugatory

  • Loice Khachendi Onyango –vs- Alex Inyangu & Another
    [2017] eKLR

    Stay is discretionary but must be exercised judiciously on the three Order 42 Rule 6 prerequisites

Jurisdiction invoked
Order 22 Rule 22, Order 51 Rules 1 and 13(2) of the Civil Procedure Rules; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kang’ethe v Ngeno & another", Case Analysis (2023). Environment & Land Case 67 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18179/eng@2023-06-15

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