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ELCAllowedNot stated in judgment (application dated 23rd September, 2021 in Originating Summons dated 24th August, 2017)· [2025] KEELC 215 (KLR)

Kamoing v Barchok & 3 others (Environment & Land Case 103 of 2017) [2025] KEELC 215 (KLR)

Environment and Land Court
30 January 2025
LOL. A. Omollo
2,597 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kericho court allowed a landowner to enforce his 2020 judgment immediately because the losing side produced no actual stay of execution order from an appeal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determined a Notice of Motion dated 23rd September, 2021 by the Plaintiff/Applicant, Joshua Kamoing, seeking implementation of the judgment and decree of the Court dated 6th May, 2020. In that judgment the Court had declared a trust relationship between the Applicant and the 1st, 2nd and 3rd Respondents over LR No. Kericho/Boito/95 and LR No. Kericho/Boito/140, held the Applicant entitled to one third of the total acreage in LR Nos. Kericho/Boito/140 and 1218, and cancelled certain titles to allow distribution. The Applicant sought orders that the District Surveyor survey and subdivide the properties, that the Deputy Registrar execute consents, mutation and transfer forms, and that the OCS Konoin Police Station provide security during the exercise. The Respondents opposed, citing a pending appeal and an application for stay of execution before the Court of Appeal (Civil Application No. E36 of 2021), and urged maintenance of status quo, relying on Baber Mawji v United States International University. The Respondents filed no submissions. The Court, applying Section 34(1) of the Civil Procedure Act and the decision in Kipungar v Tamning & 3 others, held that the prayers merely gave effect to the decree and that no order staying execution had been availed. It found it grossly unjust to deny the Applicant the fruits of a judgment delivered over four years earlier. The application was allowed in its entirety, with each party to bear their own costs.

Key legal issues

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01

Whether the applicant is entitled to orders directing survey, subdivision and execution of documents to implement the decree despite a pending appeal

Holding

The application was allowed because no order of stay of execution was in place and the prayers merely gave effect to the decree

Reasoning

The court noted that its judgment of 6th May 2020 declared a trust and awarded the applicant one third of the suit properties. The pending Court of Appeal application for stay had no availed order staying execution. Relying on Section 34(1) of the Civil Procedure Act and precedent, the court held that prayers meant to give effect to a decree are meritorious and should not be obstructed by a recalcitrant respondent.

p. 6
02

Whether questions relating to execution of a decree must be determined by the court executing the decree

Holding

Yes, per Section 34(1) of the Civil Procedure Act

Reasoning

The court invoked Section 34(1) of the Civil Procedure Act which provides that all questions arising between parties to a suit relating to execution, discharge or satisfaction of a decree shall be determined by the court executing the decree and not by a separate suit. This grounded the court's jurisdiction to grant implementation orders.

p. 5

Legal principles established

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  • A post-judgment application to give effect to a decree should not be inhibited by a respondent not keen to obey the decree
  • It is unjust to deny a party the fruits of a judgment where no order of stay of execution is in place

Court orders

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  1. 1.The District Surveyor shall visit and cause survey and sub-division of the properties known as LR No. Kericho/Boito/140 and LR No. Kericho/Boito/1218 and prepare mutation forms to facilitate implementation of the judgment and decree of the Court dated 6th May, 2020
  2. 2.The Deputy Registrar of the Court shall execute application for consents to sub-divide, transfer forms and mutation for purpose of implementing the judgment of the Court dated 6th May, 2020
  3. 3.The OCS, Konoin Police Station shall provide security to the Applicant and the District Surveyor during the survey and subdivision exercise on LR No. Kericho/Boito/140 and 1218
  4. 4.Each party shall bear own costs
Jurisdiction invoked
Sections 1A, 3A and 98 of the Civil Procedure Act and Article 159 of the Constitution

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, "Kamoing v Barchok & 3 others (Environment & Land Case 103 of 2017) [2025] KEELC 215 (KLR)", Case Analysis (2025). Not stated in judgment (application dated 23rd September, 2021 in Originating Summons dated 24th August, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/215/eng@2025-01-30

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