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ELCAllowedEldoret ELCA No. E008 of 2024 (Motion dated 28th May 2024)· [2024] KEELC 6252 (KLR)

Kipseret v Yator & another (Civil Appeal E022 of 2024) [2024] KEELC 6252 (KLR)

Environment and Land Court
26 September 2024
3,570 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (E. O. Obaga, J) on a Notice of Motion dated 28th May 2024 by the appellant, John Luke Amemo Osiemo, seeking stay of execution of the decree, certificate of costs and consequential orders arising from the judgment of 7th May 2024 in Eldoret CMC E&L No. 64 of 2018, in which the trial court declared him a trespasser on the suit property and ordered his eviction within 90 days. The appeal is pending against that judgment. The 1st Respondent, Richard Kaino Kipseret, opposed the application, contending that the appellant had not demonstrated substantial loss, that the application was filed late, and that no security had been offered. The court identified the sole issue as whether the appellant met the Order 42 Rule 6 conditions. It found substantial loss established in the potential loss of the appellant's family home and developments; that the appeal raised arguable issues, particularly that the trial court delivered judgment in apparent breach of an order of 26th/29th February 2024 staying proceedings in the lower court, and allegations of title acquired contrary to orders in Eldoret Petition No. 20 of 2022; that a one-month filing delay was not inordinate; and that the appellant's willingness to furnish security as directed sufficed. The application was allowed: execution was stayed pending the appeal, on condition that the appellant deposits Kshs 50,000/= in court as security within 14 days, failing which the stay lapses. Costs of the application were to be in the cause.

Key legal issues

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01

Substantial loss

Holding

Loss of the applicant's family home and developments through eviction constitutes substantial loss

Reasoning

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.

p. 5
02

Arguable appeal

Holding

The appeal raises arguable issues including delivery of judgment in contravention of an order staying proceedings

Reasoning

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.

p. 5
03

Unreasonable delay

Holding

A one-month delay in filing the application was not inordinate

Reasoning

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.

p. 5
04

Security

Holding

An offer to abide by any conditions on security imposed by the court satisfies the security requirement

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Appellant to deposit Kshs 50,000/= in court as security for costs within 14 days failing which the stay orders will lapse
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (14)

  • Cynthia Achieng Marere v Athanas Shibwon Asiavugwa
    [2015] eKLR
  • Utalii Transport Co. Ltd & 3 Others v NIC Bank Ltd & Ano.
    [2014] eKLR
  • Kitamaiyu Limited v County Government - Kiambu & Another
    [2018] eKLR
  • Niaz Mohammed Janmohammed v Commissioner for Lands & 4 Others
    [1996] eKLR
  • James Wangalwa & Anor v Agnes Naliaka Cheseto
    [2012] eKLR
  • Masisi Mwita v Damaris Wanjiku Njeri
    [2016] eKLR
  • Equity Bank Ltd v Taiga Adams Company Ltd
    [2012] eKLR
  • Hassan Guyo Wakalo v Straman EA Ltd
    [2013] eKLR
  • Chege v Gachora
    (Civil Appeal 265 of 2023) (2024) KEHC 1994 (KLR)
  • Silverstein v N. Chesoni
    [2002] 1 KLR 867
  • Mukuma v Abuoga
  • Arun C. Sharma v Ashana Raikundalia T/A Rairundalia & Co. Advocates
    [2014] eKLR
  • Focin Motorcycle Co. Limited v Ann Wambui Wangui & Another
    [2018] eKLR
  • Trust Bank Limited v Ajay Shah & 3 Others
    [2012] eKLR
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

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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, "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.