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ELCDismissedEnvironment & Land Case E001 of 2023· [2023] KEELC 21630 (KLR)

Tarus v Kurgat

Environment and Land Court
16 November 2023
MMM. N. MWANYALE
1,219 words in judgment
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The bottom line

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The Environment and Land Court refused to pause a land resurvey because the applicant showed no real loss, so the trial case continues.

What this practically means

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Executive summary

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The applicant, Rhoda Jepkorir Tarus, moved the Environment and Land Court at Kapsabet by Notice of Motion dated September 25, 2023 seeking stay of execution of a trial court ruling (delivered August 30, 2023) pending appeal. The impugned ruling had reviewed a consent order that had settled a boundary dispute over parcels Nandi/Kipkaren/Salient/602 and 603, hived out of Nandi/Kipkaren Salient/216, and ordered a resurvey owing to discrepancies in acreages between mutation forms and an earlier survey report. The applicant argued the consent order was set aside without due regard to the tenets governing such setting aside, that she had an arguable appeal which would be rendered nugatory, and that she was ready to furnish security. The respondent opposed, contending the application was an abuse of process, that no prejudice would arise from a resurvey since no beacons would be removed, and that security had not been provided. The court framed three issues: whether the stay conditions were met, whether the application was merited, and what reliefs should issue. Applying Order 42 rule 6 and the Court of Appeal's decision in James Wangalwa v Agnes Naliaka Cheseto, the court held that although the application was brought timeously, no substantial loss or prejudice had been demonstrated because the trial matter remains live and any aggrieved party may appeal after final judgment. The application was dismissed, the ordered resurvey was directed to proceed as scheduled by the trial court, and costs were awarded to the respondent.

Key legal issues

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01

Whether the conditions for stay of execution under Order 42 rule 6 were met

Holding

The application was timely, but substantial loss was not demonstrated, so the stay conditions were not satisfied

Reasoning

Order 42 rule 6 requires satisfaction that substantial loss may result unless stay is granted, that the application was made without unreasonable delay, and that security is given. The court found the application timely but held that because the trial matter remains live and final judgment will attract a right of appeal, no prejudice or substantial loss would befall the applicant if the resurvey proceeds.

p. 3

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal
  • Where the trial matter is still live and final judgment will carry a right of appeal, no prejudice arises from refusing an interlocutory stay

Court orders

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  1. 1.The application for stay of execution is dismissed
  2. 2.The survey that had been ordered to proceed as may be scheduled by the trial court
  3. 3.Costs of the application awarded to the respondent
On appeal from
Trial court (magistrates' court)
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Tarus v Kurgat", Case Analysis (2023). Environment & Land Case E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21630/eng@2023-11-16

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