Tormoi & another v Koech (Sued in his Capacity as the Trustee and Executor of the Estate of Kipngeno Arap Ngeny) & 3 others
The bottom line
#The Environment and Land Court at Kericho refused to pause a land case pending appeal because the applicants delayed ten months and never showed their appeal had merit.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants demonstrated an arguable appeal to warrant stay of proceedings
The applicants failed to demonstrate arguability; no memorandum of appeal was annexed and no evidence of applying for or paying for proceedings was produced
The court held that to succeed on a stay of proceedings application the applicant must show an arguable appeal. Save for a notice of appeal, the applicants neither annexed a memorandum of appeal nor showed they had applied for or paid for the typed proceedings and ruling. Without these, the court could not discern the merit of the intended appeal and would not go on a fishing expedition.
Whether the application was brought expeditiously
The application was filed ten months after the impugned ruling and one day out of a court-ordered deadline, without leave, evidencing indolence
The impugned ruling was delivered on May 13, 2021 and the application filed on March 25, 2022, ten months later, with no explanation. The court had issued an ultimatum on March 24, 2022 to file the application by close of day; filing a day late without leave demonstrated delay. The applicants' indolence could not be visited on respondents who had complied with pre-trial directions.
Whether the application was saved by the court's inherent jurisdiction despite being filed out of the directed timeline
The court, in the spirit of section 3A of the Civil Procedure Act, deemed the application properly on record despite being filed one day late
Although the application was filed on March 25, 2022, one day outside the court's ultimatum and without leave, the court invoked section 3A of the Civil Procedure Act and deemed it properly on record, proceeding to determine it on its merits rather than striking it out as abandoned.
Legal principles established
#- An arguable appeal is not one that will necessarily succeed but one which raises triable issues, and the applicant must demonstrate arguability, typically by annexing a memorandum of appeal
- Stay of proceedings is a grave judicial action interfering with a litigant's right to conduct litigation; the test is high and stringent
Court orders
#- 1.The applicants' application dated March 23, 2022 seeking stay of execution/proceedings pending appeal is dismissed
- 2.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Order 42 rule 6(1) of the Civil Procedure Rules 2010; sections 19(3)(f), (i) & (j) of the Environment and Land Court Act 2011; section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tormoi & another v Koech (Sued in his Capacity as the Trustee and Executor of the Estate of Kipngeno Arap Ngeny) & 3 others", Case Analysis (2023). Environment & Land Miscellaneous Case 23 of 2020 & Environment & Land Case 13 of 2019 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18525/eng@2023-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.