Kimaiyo & 3 others v Biwott & 5 others (Environment & Land Case 102 of 2016) [2024] KEELC 6496 (KLR)
The bottom line
#A Kenyan land court dismissed applications to delay enforcement of a judgment because the applicants proved no real loss, delayed offering no security, and misused a status quo order.
What this practically means
#Executive summary
#Key legal issues
#Whether the conditions for stay of execution under Order 42 Rule 6(2) were met
The stay application failed: substantial loss was not demonstrated since site visit reports by the County Surveyor and Deputy Registrar showed the 2nd Plaintiff resided on Parcel No. 21, not the suit property; delay of 40 days was not inordinate; but no security was offered or deponed to
The court applied the three conditions in Order 42 Rule 6(2). Two independent site visit reports established that the 2nd Plaintiff's structure falls on Parcel No. 21 and not the suit property, so the claimed eviction and livelihood loss was illusory and raised only to mislead the court. Although 40 days' delay was not inordinate, the Plaintiffs never expressed willingness to furnish security for due performance of the decree, failing the final hurdle. All conditions must be satisfied.
Whether the status quo order of 24th November 2022 should be defined in favour of the 2nd Plaintiff
Refused. A status quo order preserves the existing state of things as at the date of the order; defining it in favour of the Plaintiffs would tilt the position, since they were not in occupation of the suit property
Adopting the Court of Appeal's definition in Shimmers Plaza Limited v National Bank of Kenya Limited, status quo means the present situation at the time the order is made, not past or future events. The survey evidence showed the 2nd Plaintiff was not on the suit property. Granting the definition sought would alter the state of affairs, defeating the very purpose of a status quo order.
Who bears the costs of the two applications
Costs awarded to the Defendants as the successful parties, costs following the event under Section 27 of the Civil Procedure Act
The court exercised its discretion under Section 27 of the Civil Procedure Act judiciously. The Plaintiffs filed both applications and forced the Defendants to incur costs responding; the Defendants prevailed on both. The successful party is entitled to costs absent good reason to depart.
Legal principles established
#- An applicant for stay of execution pending appeal must satisfy all the conditions in Order 42 Rule 6(2): substantial loss, absence of unreasonable delay, and security for due performance of the decree
- Substantial loss must be proved with specific details; mere intention to execute does not suffice
- A status quo order preserves things as they stand at the time the order is made and cannot be defined so as to alter or tilt the existing position
- Costs follow the event under Section 27 of the Civil Procedure Act
Court orders
#- 1.The Plaintiffs' Notice of Motion dated 18th November, 2022 is dismissed
- 2.The Plaintiffs' Notice of Motion dated 14th December, 2022 is dismissed
- 3.Costs of the two applications awarded to the Defendants
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules; Section 27 of the Civil Procedure Act (court seized of suit, applications for stay pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimaiyo & 3 others v Biwott & 5 others (Environment & Land Case 102 of 2016) [2024] KEELC 6496 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6496/eng@2024-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.