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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 6039 (KLR)

Kemboi v Kimetei (Environment & Land Case 006 of 2024) [2024] KEELC 6039 (KLR)

Environment and Land Court
19 September 2024
AOA.O. Ombwayo
1,251 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court declined to extend lapsed stay orders but froze the status quo, protecting a family home from eviction while the appeal is decided.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 5th April 2024 in which the Appellant/Applicant, Benard Kipsang Kemboi, sought extension of stay of execution orders issued by the Honourable V.O Adet on 12th February 2024, maintenance of status quo pending appeal, and costs. The application followed a judgment delivered on 12th January 2024 ordering the applicant to vacate the suit property, failing which he would be evicted within 30 days. The applicant argued that the suit property was his family's only residence, that execution would render him and his family homeless and render the appeal nugatory, and that he was willing to abide by any conditions the court imposed. The Respondent filed no response. The court identified a single issue: whether an order for stay of execution pending appeal should issue. Applying Order 42 Rule 6(1)(2) of the Civil Procedure Rules, the RWW V EKW decision, and the guidelines in Butt v Rent Restriction Tribunal, the court found the application filed within about three months of judgment, hence without unreasonable delay. On substantial loss, it held that while the appeal remains pending, execution through eviction may cause the applicant loss, noting the lapse of the 60-day conditional stay granted by the subordinate court. The court declined to extend the lapsed stay orders but instead ordered that the status quo be maintained pending hearing and determination of the appeal. The appeal was admitted, the lower court file was to be availed within 10 days, submissions were to be filed within 15 days sequentially, and judgment was set for 31 October 2024. No costs order was pronounced despite the prayer for costs.

Key legal issues

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Whether stay of execution pending appeal should issue

Holding

The court declined to extend the lapsed 60-day subordinate court stay orders but ordered maintenance of the status quo pending the appeal, holding that execution while the appeal is pending may cause the applicant loss through eviction

Reasoning

The court applied Order 42 Rule 6(1)(2) Civil Procedure Rules and the Butt v Rent Restriction Tribunal guidelines. It found the application filed about three months after judgment was without unreasonable delay, and that eviction pending appeal would render the applicant and his family homeless, amounting to substantial loss. The applicant had also offered to abide by conditions. Rather than extend the lapsed stay, the court maintained the status quo and admitted the appeal with timetabling directions.

p. 3

Legal principles established

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  • Grant of an order for stay of execution pending appeal is discretionary and its purpose is to preserve the subject matter of the appeal
  • Stay of execution pending appeal is governed by Order 42 Rule 6(1)(2) of the Civil Procedure Rules requiring substantial loss, no unreasonable delay and security

Court orders

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  1. 1.Status quo be maintained pending the hearing and determination of the appeal
  2. 2.The appeal is admitted accordingly
  3. 3.The lower court file to be availed within 10 days
  4. 4.The appellant to file and serve submissions within 15 days
  5. 5.The respondent to file and serve submissions within 15 days of service
  6. 6.Judgment on 31 October 2024
On appeal from
Subordinate court (magistrates' court)
Jurisdiction invoked
Appellate/stay jurisdiction under Order 42 Rule 6 of the Civil Procedure Rules

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, "Kemboi v Kimetei (Environment & Land Case 006 of 2024) [2024] KEELC 6039 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6039/eng@2024-09-19

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