Kang'ethe v Bore & another
The bottom line
#The Environment and Land Court refused to pause a land transfer judgment because the losing party showed no real loss and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant satisfied the conditions for stay of execution pending appeal under order 42 rule 6(2)
The application was dismissed: the applicant, not being in possession or occupation of the suit land, showed no substantial loss, and furnished no security, though the delay of 48 days was found not inordinate
The court applied the three cumulative conditions in order 42 rule 6(2). On substantial loss, the applicant had sold and was not in occupation of the land, so any transfer could be reversed on appeal without rendering it nugatory. No evidence of irreparable loss was given. Security, a mandatory condition, was not furnished. The court also declined to deny a successful litigant the fruits of judgment absent special circumstances.
Effect of failure to file submissions as directed
The court noted the applicant's non-compliance with directions to file submissions, deeming it inertia and lack of interest, but nonetheless proceeded to determine the application on its merits
Having directed disposal by written submissions, the applicant's submissions were neither in the registry nor the court file despite extensions of time. The court held such failure demonstrates inertia and inordinate delay and would ordinarily justify dismissal, but as a court of law it still examined what the application sought before dismissing it on the substantive conditions.
Weight of the 1st respondent's submissions absent a replying affidavit
The defendant/1st respondent's written submissions were of no effect because no replying affidavit was filed
Relying on the Supreme Court's decision in Konchellah v Sunkuli, the court held that a replying affidavit is the principal document setting out a respondent's reply and the basis of any submissions; without it, the 1st respondent's submissions opposing the application carried no weight.
Legal principles established
#- An appeal does not operate as a stay; stay pending appeal requires substantial loss, application without unreasonable delay, and security for due performance of the decree
- Substantial loss is what must be prevented by preserving the status quo because such loss would render the appeal nugatory
- A party who fails to file submissions as ordered is deemed to have failed to prosecute the application, which is liable for dismissal
- Written submissions are of no effect in the absence of a replying affidavit as the foundational pleading
Court orders
#- 1.The application dated July 12, 2022 seeking stay of execution pending appeal is dismissed
- 2.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Order 42 rule 6 and section 3A of the Civil Procedure Act; inherent jurisdiction of the Environment and Land Court over its own judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kang'ethe v Bore & another", Case Analysis (2023). Environment & Land Case 68 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18371/eng@2023-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.