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)
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
#Key legal issues
#Whether a stay of execution should be granted under Order 42 Rule 6
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.
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.
Whether leave to appeal out of time should be granted under Section 79G of the Civil Procedure Act
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.
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.
Who should bear the costs
Costs follow the event; the Applicant shall bear the costs as no compelling reason to depart from the general rule was shown.
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.
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.The application dated May 21, 2024 is dismissed in its entirety
- 2.The Applicant shall bear the costs of the application
- 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.