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ELCDismissedNot stated in judgment· [2024] KEELC 6285 (KLR)

Katam & 2 others v Maiyo & another (Environment & Land Case 361 of 2013) [2024] KEELC 6285 (KLR)

Environment and Land Court
26 September 2024
JOJ.M Onyango
5,286 words in judgment
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The bottom line

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The Eldoret Environment and Land Court refused to pause a land judgment because the defendants proved none of the required conditions for a stay.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (J.M Onyango, J) determined two consolidated Notices of Motion dated 20th June 2024 (2nd Defendant) and 28th June 2024 (1st Defendant), each seeking stay of execution of the court's judgment of 29th May 2024, by which the Plaintiffs were declared lawful owners of Uasin Gishu/Illula/470, 471 and 472 and the Defendants trespassers. Both Defendants filed Notices of Appeal and argued they would suffer irreparable loss through eviction from land they claimed to have occupied for 35 to 40 years, and that their appeals would be rendered nugatory. The Plaintiffs opposed, contending that mere execution is not substantial loss, the Defendants failed to exhibit memoranda of appeal, and their security offers were inadequate, proposing KShs.1,000,000/- to 2,000,000/- security. The court identified a single issue: whether stay should issue. Applying Order 42 Rule 6(2) as explained in Kuko v Ali, it held the conditions are cumulative. Although both applications were filed timeously, the Defendants failed to demonstrate arguable appeals (no memoranda exhibited), produced no empirical evidence of substantial loss beyond threatened lawful eviction, and undermined their offers of security by capping amounts. Relying on section 26 of the Land Registration Act, the court held registered owners are entitled to possession. Both applications were dismissed with costs to the Plaintiffs on 26th September 2024.

Key legal issues

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01

Whether the Defendants satisfied the conditions for stay of execution under Order 42 Rule 6(2)

Holding

The applications were filed without delay, but Defendants failed to exhibit memoranda of appeal to show arguable appeals, did not demonstrate substantial loss beyond mere assertions, and were not genuine in offering security; all conditions not being met, stay was refused.

Reasoning

The court set out four conditions: arguable appeal, substantial loss, no unreasonable delay, and security. Only the delay condition was met. The Defendants did not exhibit memoranda of appeal, gave no empirical evidence of loss beyond threatened eviction, and capped their security offers, undermining good faith. Execution is a lawful process; the Plaintiffs hold registered titles under section 26 of the Land Registration Act and had been denied possession since 2006.

p. 9

Legal principles established

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  • Conditions in Order 42 Rule 6(2) are cumulative; all must be satisfied before stay can be granted
  • Mere fact of execution is not a ground for granting stay; applicant must show substantial loss
  • Substantial loss must be supported by evidence, not mere assertion

Court orders

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  1. 1.Both Applications dated 20th June 2024 and 28th June 2024 dismissed
  2. 2.Costs of the two applications to the Plaintiffs
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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Katam & 2 others v Maiyo & another (Environment & Land Case 361 of 2013) [2024] KEELC 6285 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6285/eng@2024-09-26

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