Kipseret v Yator & another (Civil Appeal E022 of 2024) [2024] KEELC 6252 (KLR)
The bottom line
#The Eldoret Environment and Land Court stopped a family's eviction pending appeal, confirming that threatened loss of your home counts as substantial loss.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
Loss of the applicant's family home and developments through eviction constitutes substantial loss
The applicant deponed that he settled his family on the suit property and undertook extensive developments. The court reasoned that if the applicant did not occupy the property, the respondent would have no need for an eviction order, so occupation and threatened eviction demonstrated real loss not compensable by damages.
Arguable appeal
The appeal raises arguable issues including delivery of judgment in contravention of an order staying proceedings
The court noted an order of 26th/29th February 2024 staying proceedings in the trial court which the trial magistrate apparently ignored in delivering judgment, plus allegations of title obtained contrary to orders in Eldoret Petition No. 20 of 2022 and infringement of the right to a fair trial. These were held to be valid, arguable grounds for determination in the appeal.
Unreasonable delay
A one-month delay in filing the application was not inordinate
The application was filed on 12th June 2024, about a month after the judgment of 7th May 2024. The respondent did not demonstrate any special circumstance showing how the one-month delay prejudiced him, so the delay was not inordinate.
Security
An offer to abide by any conditions on security imposed by the court satisfies the security requirement
Following Arun C. Sharma and Focin Motorcycle, the court held that it is the court that determines the nature of security; a stated willingness to provide security evidences good faith and suffices to meet the Order 42 Rule 6 condition. The court set Kshs 50,000/= as security.
Legal principles established
#- To succeed on an application for stay of execution, a party must satisfy all three cumulative conditions under Order 42 Rule 6: substantial loss, no unreasonable delay, and security
- Willingness to furnish such security as the court may order is sufficient to satisfy the security condition under Order 42 Rule 6
Court orders
#- 1.Stay of execution of the Decree, Certificate of Costs and all consequential orders arising from the judgment in Eldoret CMC E&L No. 64 of 2018 pending hearing and final determination of the appeal
- 2.Appellant to deposit Kshs 50,000/= in court as security for costs within 14 days failing which the stay orders will lapse
- 3.Costs of the application to be in the cause
- On appeal from
- Chief Magistrate's Court, Eldoret
- Eldoret CMC E&L No. 64 of 2018
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (appellate jurisdiction over appeal from the magistrates' court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipseret v Yator & another (Civil Appeal E022 of 2024) [2024] KEELC 6252 (KLR)", Case Analysis (2024). Eldoret ELCA No. E008 of 2024 (Motion dated 28th May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6252/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.