Chepkirui v Kusero & another (Environment and Land Appeal E038 of 2023) [2024] KEELC 3977 (KLR)
The bottom line
#A Kenyan land court paused execution of a judgment so an appeal isn't wasted, even though the appellant didn't fully prove the loss she'd suffer.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated substantial loss to justify a stay of execution
The court found substantial loss not adequately demonstrated, as the applicant relied on vague apprehension rather than evidence of a state of affairs that would render the appeal nugatory
The applicant only expressed apprehension that the respondent might dispose of the suit properties and relied on a general undertaking to abide by court terms. Relying on James Wangalwa and Machira, the court reiterated that execution per se is not substantial loss and stay is not granted on vague speculation; the applicant did not specify the particular loss likely to ensue.
Whether the application was filed without unreasonable delay
Yes - filed about a month after the judgment and within the 45-day interim stay granted by the trial court
The application dated 28/9/2023 was lodged in September 2023, roughly one month after the 15/8/2023 judgment, and fell within the 45 days' interim stay period granted by the trial court, satisfying the timeliness limb.
Whether the applicant offered security for the due performance of the decree
No substantive offer of security was made beyond a general undertaking to comply with the court's terms
Beyond the averment that she was ready and willing to furnish security if required, the applicant proffered no actual or specific security. The court nonetheless exercised its discretion in the interest of justice to allow the application so the appeal would not be rendered nugatory.
Legal principles established
#- For stay of execution under Order 42 rule 6, an applicant must establish substantial loss, timely filing of the application and furnishing of security
- The mere fact that execution has been put in motion does not by itself amount to substantial loss
Court orders
#- 1.The Application is allowed purely in the interest of justice and to ensure the Appeal is not rendered nugatory (stay of execution of the trial Court judgment delivered on 15/8/2023)
- 2.Costs of the Application be in the cause
- On appeal from
- Environment and Land Court, Ruiru
- ELC No. E 015 of 2022
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chepkirui v Kusero & another (Environment and Land Appeal E038 of 2023) [2024] KEELC 3977 (KLR)", Case Analysis (2024). Notice of Motion dated 28/9/2023 (appeal against judgment in Ruiru ELC No. E 015 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3977/eng@2024-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.