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ELCPartially Allowed· [2025] KEELC 315 (KLR)

Lasoi (Suing as the administrator of the Estate of the Late Solomon Kipkorir Arap Lasoi) & 2 others v Cheruiyot & 10 others (Environment & Land Case 472 of 2016 & 54 of 2020 (Consolidated)) [2025] KEELC 315 (KLR)

Environment and Land Court
4 February 2025
1,873 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Nakuru paused the eviction only if the defendants deposited Kshs. 300,000 within 30 days, showing courts demand proof and security, not just promises.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (M. A. Odency, J) on a Notice of Motion dated 19th November 2024 by the 2nd-7th Defendants seeking a stay of execution of the judgment and decree delivered on 11th October 2024, which had favoured the Plaintiffs and given the Defendants forty-five days to vacate the suit land or face eviction. The 2nd Defendant, Peter Cheruiyot, deponed that he had filed a Notice of Appeal, that the application was made without delay, and that the Plaintiffs had invaded the land before expiry of the forty-five days. The 1st Plaintiff opposed, deponing that her servants occupied and cultivated ten acres, that the 4th and 5th Defendants had accelerated planting after the judgment, and that any stay should be conditioned on security of Kshs. 35,000,000/=. The sole issue was whether the Applicants met the Order 42 Rule 6 threshold. The court found the application timely, accepted that imminent eviction from land occupied for over ten years, supported by photographs of pre-expiry invasion, demonstrated substantial loss, and noted the Applicants' offer to furnish security. Applying authorities including Consolidated Marine v Nampija, Kenya Shell v Kibiru, Samvir Trustee v Guardian Bank and Kimani v Akuisi Farmers, the court ordered the Applicants to deposit Kshs. 300,000/= in a joint interest-earning account of counsel within thirty days, failing which the order lapses. No costs order was made.

Key legal issues

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01

Whether the Applicants satisfied the Order 42 Rule 6 threshold for stay of execution pending appeal

Holding

The court found the application was filed timeously (judgment 11th October 2024, application 19th November 2024), that substantial loss was shown (eviction from land occupied for over ten years, with photographs of invasion before expiry of the 45-day vacate period), and the Applicants offered to abide security conditions; stay was granted conditional on a deposit of Kshs. 300,000/= in a joint interest-earning account within 30 days.

Reasoning

The court applied the three limbs of Order 42 Rule 6(2): no unreasonable delay, substantial loss, and security. On delay it found about five weeks reasonable. On substantial loss it held assertions alone are insufficient but accepted the Applicants' evidence of imminent eviction from land long occupied and the Plaintiffs' pre-expiry invasion. On security it accepted the offer to comply and imposed a Kshs. 300,000/= deposit as a sign of good faith, following Exclusive Mines Limited.

p. 4
02

Whether mere assertions of substantial loss suffice

Holding

No; empirical or documentary evidence is required, though here the Applicants' evidence was accepted.

Reasoning

Relying on Samvir Trustee Limited v Guardian Bank Limited and Kenya Shell Limited v Kibiru, the court stressed that substantial loss is the cornerstone of a stay application and must be proved with adequate and proper evidence rather than taken at face value. The Applicants' deposition that the Plaintiffs invaded the land before expiry of the 45-day period, supported by photographs, satisfied this burden.

p. 4

Legal principles established

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  • Proof of substantial loss is the cornerstone of applications for stay of execution and must be proved, not merely asserted
  • The purpose of a stay of execution is to preserve the subject matter so that a successful appeal is not rendered nugatory
  • Imminent eviction following a judgment is not, by itself, proof of substantial loss; the court must balance the rights of the successful litigant and the aggrieved party

Court orders

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  1. 1.The Applicants do deposit Kshs. 300,000/= in a joint interest earning account of counsel on record for the Applicants and the Respondents within 30 days, failure to which the order lapses (in support of the stay of execution of the judgment and decree of 11th October 2024 pending the intended appeal)

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder XLI Rule 4 (referred to in Kenya Shell Limited v Kibiru quote)

Cases cited (13)

  • Mohammed Salim T/A Choice Butchery vs Nasserpuria Memon Jamat
    (2013) eKLR
  • Kenya Tanzania Uganda Leasing vs Mukenya Ndunda & another
    (2013) eKLR
  • RWW vs EKW
    (2019) eKLR
  • Masisi Mwita vs Damaris Wanjiku Njeri
    (2016) eKLR
  • Jamii Bora Bank Limited & another vs Samuel Wambugu Ndirangu
  • Kivindu & another vs Musau & 4 others
    [2023] KECA 1015
  • Stanley Kangethe Kinyanjui vs Tony Ketter & 5 others
    [2013] eKLR
  • Consolidated Marine vs Nampija & Another
    Civil App. No. 93 of 1989 (Nairobi)
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    [2014]
  • Kenya Shell Limited vs Kibiru
    [1986] KLR 410
  • Kimani & 2 others v Akuisi Farmers Company Limited & another
    (Environment and Land Appeal E046 of 2023) [2024] KEELC 5474 (KLR) (25 July 2024) (Ruling)
  • Samvir Trustee Limited Vs Guardian Bank Limited
    Nairobi (Milimani) HCCC No. 795 of 1997
  • Exclusive Mines Limited & another vs Ministry of Mining & 2 others
    [2015] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending intended appeal)

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, "Lasoi (Suing as the administrator of the Estate of the Late Solomon Kipkorir Arap Lasoi) & 2 others v Cheruiyot & 10 others (Environment & Land Case 472 of 2016 & 54 of 2020 (Consolidated)) [2025] KEELC 315 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/315/eng@2025-02-04

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