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ELCAllowedKabarnet MCELC Case No. 26 of 2018 (Appeal)· [2025] KEELC 916 (KLR)

Songol & another v Kipkebut (Environment and Land Appeal E012 of 2024) [2025] KEELC 916 (KLR)

Environment and Land Court
24 February 2025
LWL. N. Waithaka
1,395 words in judgment
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The bottom line

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The Environment and Land Court in Kabarnet paused eviction from disputed land, but only if the appellants deposit Kshs. 200,000 and fast-track their appeal.

What this practically means

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Executive summary

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This ruling by L. N. Waithaka J of the Environment and Land Court at Kabarnet, delivered on 24th February 2025, determines a notice of motion dated 23rd October 2024 in which the applicants (appellants) sought a stay of execution of the decree in Kabarnet MCELC Case No. 26 of 2018, delivered by Hon. Purity Kosgei on 5th September 2022, pending the hearing and determination of their appeal. The trial court had declared the respondent the bona fide owner of the suit property, formerly Baringo/Kapchomuso "A"/147, declared the applicants trespassers, ordered their eviction, and issued a permanent injunction. The applicants argued that execution would evict them and render the appeal nugatory; the respondent countered that the decree had already been executed, the application was brought in bad faith, and the conditions for stay under Order 42 Rule 6 of the Civil Procedure Rules had not been met. The applicants' further affidavit was found fatally defective for want of commissioning. Finding the sole issue to be whether the applicants merited a stay, the court balanced the competing interests of the successful litigant and the appellants exercising their right of appeal. It held that the respondent might deal with the occupied land prejudicially to the appeal if stay were denied, and that his prejudice could be lessened by fast-tracking the appeal. The court granted the stay on condition that the applicants deposit Kshs. 200,000/= as security within 21 days, failing which the application would stand automatically dismissed with costs, and directed that the appeal be heard within 120 days, failing which it would stand automatically dismissed with costs to the respondent.

Key legal issues

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01

Whether the applicants satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules

Holding

Stay was granted on conditions: deposit of Kshs. 200,000/= security within 21 days and prosecution of the appeal within 120 days, balancing the applicants' right of appeal against the respondent's right to the fruits of judgment.

Reasoning

The court found the suit property had been declared to belong to the respondent but remained in the applicants' occupation. Denying stay risked the respondent dealing with the land in a manner prejudicial to the appeal. The respondent's prejudice was addressed by conditional security and a fast-tracked appeal timetable.

p. 3
02

Whether a further affidavit not commissioned could be relied upon

Holding

The further affidavit sworn on 2nd December 2024 was found fatally defective for want of commissioning.

Reasoning

The court noted the applicants' further affidavit was not commissioned and treated it as fatally defective, though the application was ultimately determined on the material before the court and submissions.

p. 2

Legal principles established

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  • Where the subject matter of an appeal is land declared to belong to the successful litigant but occupied by the appellants, denial of stay may render the appeal nugatory because the successful party may deal with the property prejudicially to the appeal outcome.
  • Prejudice to a successful litigant from a stay order can be lessened by fast-tracking the hearing of the appeal.

Court orders

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  1. 1.Stay of execution of the decree arising from the judgment of 5th September 2022 and all consequential orders or proceedings pending the hearing and determination of the appeal, on condition that the applicants deposit Kshs. 200,000/= with the court within 21 days as security, failing which the application shall automatically stand dismissed with costs to the respondent
  2. 2.The appellant to, with the help of the Deputy Registrar, ensure the appeal is processed for hearing and heard within 120 days from the date of delivery of the ruling, failing which it shall stand automatically dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (7)

  • Macharia T/A Machira & Co. Advocates v East Africa Standard (No.2)
    (2002) KLR 63
  • Samvir Trustee Limited v. Guardian Bank Limited
    Nairobi (Milimani) HCCC 795 of 1997
  • Amarnath (Suing on behalf of the Estate of the late Amarnath Gupta) v. Kazungu & 2 others
    Civil Appeal E033 of 2021
  • Luxus Woods (K) Limited v. Patrick Amug Re Kamadi
    (2016) eKLR
  • Multichoice Kenya Limited vs. Francis Omondi
    (2018) eKLR
  • James Wangalwa & another vs. Agnes Naliaka Cheseto
  • Equity Bank Limited v. Taiga Adams Company Ltd
On appeal from
Magistrates' Court, Kabarnet
Kabarnet MCELC Case No. 26 of 2018
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "Songol & another v Kipkebut (Environment and Land Appeal E012 of 2024) [2025] KEELC 916 (KLR)", Case Analysis (2025). Kabarnet MCELC Case No. 26 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/916/eng@2025-02-24

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