Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedCivil Suit Number 801 of 2011 (Application dated 21st May 2024)· [2024] KEELC 6293 (KLR)

Kemboi (Suing as the Legal Representative of the Late Jonathan Kipkemboi Chepkong’a) v Kimaiyo (Environment and Land Miscellaneous Application E022 of 2024) [2024] KEELC 6293 (KLR)

High Court of Kenya
25 September 2024
3,575 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

The High Court in Eldoret dismissed a bid for a stay of execution and extra time to appeal, stressing concrete proof of harm and prompt action.

What this practically means

#

Executive summary

#
By a Notice of Motion dated 21st May 2024 under section 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, the Applicant sought temporary stay of execution of the judgment/decree in Eldoret Chief Magistrate Court Civil Case Number 801 of 2011 (Philip Korir Kimaiyo v Amon Kiprotich Kemboi, sued as legal representative of the late Jonathan Kipkemboi Chepkong’a), and leave to appeal out of time. The application was opposed; the Respondent argued the roughly six-month delay was inordinate and unjustified, that certified proceedings were unnecessary to file a memorandum of appeal, and that no substantial loss was shown since he could refund any decretal sums. The court framed three issues: stay of execution, leave to appeal out of time, and costs. On stay, it held the Applicant's complaint about the procedure for obtaining the Bill of Costs and lack of service amounted only to procedural grievance, not the concrete evidence of substantial loss required by Order 42 Rule 6(2); the unexplained delay also weighed against him. On extension of time, applying the Salat principles, the court found that certified typed proceedings are not needed to file a memorandum of appeal, that only two letters requesting proceedings did not amount to 'several attempts', and that the Applicant failed to justify the six-month delay. Leave was refused. On costs, applying Jasbir Singh Rai, costs followed the event. The application was dismissed in its entirety with costs to the Applicant.

Key legal issues

#
01

Whether a stay of execution should be granted under Order 42 Rule 6

Holding

Stay refused. The Applicant failed to demonstrate substantial loss; his argument on the Bill of Costs procedure was inadequate, and the application was also made after unreasonable delay.

Reasoning

Order 42 Rule 6(2) requires satisfaction that substantial loss may result and that the application was made without unreasonable delay, plus security. The Applicant's grievance about non-service of the Bill of Costs was procedural only. The court, citing James Wangalwa, held that execution in motion alone is not substantial loss; concrete evidence of specific harm was absent, so the applicant failed at the first hurdle and other conditions need not be examined.

p. 5
02

Whether leave to appeal out of time should be granted under Section 79G of the Civil Procedure Act

Holding

Leave denied. The 6-month delay was not justified; typed proceedings were unnecessary to file a memorandum of appeal, and only two request letters did not amount to several attempts.

Reasoning

Section 79G requires appeals within 30 days unless the applicant shows good and sufficient cause. Applying the Salat principles, the applicant bore the burden of explaining the delay. The court accepted the respondent's submission that a memorandum of appeal under Order 42 Rules 1-3 does not require certified proceedings. The two letters annexed did not constitute several attempts, and the delay remained unexplained, so the application crumbled under scrutiny.

p. 7
03

Who should bear the costs

Holding

Costs follow the event; the Applicant shall bear the costs as no compelling reason to depart from the general rule was shown.

Reasoning

Relying on Jasbir Singh Rai, the court noted costs follow the event but remain a matter of judicial discretion. Since the application was dismissed and no compelling reasons for deviation were advanced, the Applicant was ordered to pay the costs of the application.

p. 8

Legal principles established

#
  • The conditions in Order 42 Rule 6 for stay of execution must all be satisfied, and substantial loss must be demonstrated by clear and substantive evidence beyond procedural grievances
  • Lack of certified typed proceedings and judgment/decree is not a justifiable reason for failing to file an appeal within the statutory timeline
  • Extension of time is an equitable discretion and the applicant bears the burden of providing a persuasive justification for the delay

Court orders

#
  1. 1.The application dated May 21, 2024 is dismissed in its entirety
  2. 2.The Applicant shall bear the costs of the application

Authorities

#

Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure Act Cap 21 Laws of KenyaSection 79G
  • Civil Procedure RulesOrder 42 Rule 6 (including 6(2)(a) and (b))
  • Civil Procedure RulesOrder 42 Rules 1, 2 and 3
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaSection 7(1) of the Sixth Schedule
  • Civil Procedure ActSection 79B

Cases cited (7)

  • RWW v EKW
    [2019] eKLR
  • Babayao v Republic (Petition (Application) 2 of 2020)
    [2020] KESC 11 (KLR) (23 September 2020) (Ruling)
  • Raila Odinga Vs Independent Electoral and Boundaries Commission & 4 Others
    [2013] eKLR
  • Nicholas Kiptoo Arap Korir Salat vs I.E.B.C & Others
    S.C Application No. 16 Of 2014
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Joseph Odide Walome v David Mbadi Akello
    [2022] eKLR
  • Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others
    [2014] eKLR
On appeal from
Eldoret Chief Magistrate Court
Civil Case Number 801 of 2011
Jurisdiction invoked
Section 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules (appellate jurisdiction over subordinate court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kemboi (Suing as the Legal Representative of the Late Jonathan Kipkemboi Chepkong’a) v Kimaiyo (Environment and Land Miscellaneous Application E022 of 2024) [2024] KEELC 6293 (KLR)", Case Analysis (2024). Civil Suit Number 801 of 2011 (Application dated 21st May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6293/eng@2024-09-25

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