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ELCDismissedChamber Summons application dated 7th January, 2025 (appeal from Kabarnet SPM ELC Case No. E018 of 2021)· [2025] KEELC 1235 (KLR)

Tuitoek v Kiberut (Environment and Land Appeal E002 of 2025) [2025] KEELC 1235 (KLR)

High Court of Kenya
11 March 2025
1,351 words in judgment
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The bottom line

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The High Court dismissed a landowner's attempt to freeze a rival's use of disputed land pending appeal, because he used the wrong legal procedure and never proved the loss he feared.

What this practically means

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Executive summary

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This ruling of the High Court at Kabarnet (L. N. Waithaka, J) disposed of a Chamber Summons application dated 7th January, 2025 brought by the appellant, Jonathan Tuitoek, in an appeal against the judgment of the trial magistrate delivered on 13th November 2024 in Kabarnet SPM ELC Case No. E018 of 2021, Jonathan Tuitoek v. Simon Kiberut. The applicant sought a temporary injunction restraining the respondent from entering, wasting, constructing on or interfering with parcel Baringo/Kapropita/1883 pending appeal, and stay of execution of order (b) of the trial judgment. The respondent opposed, contending the application was incurably defective, having been brought under Order 40 Rules 1, 2, 3, 4 and Order 22 Rule 22(1) of the Civil Procedure Rules rather than Order 42 Rule 6(2), and that the applicant had neither demonstrated substantial loss nor offered security, having already satisfied the decree and taken possession. The court framed three issues: the legal propriety of the application, whether a case for the orders was made out, and what orders to issue. Holding that stay pending appeal must be sought under Order 42 Rule 6 and that a temporary injunction is alien in an appeal, the court found the application incurably defective. The applicant satisfied only the no-unreasonable-delay condition, having failed to demonstrate substantial loss, the cornerstone of a stay application, and having neither offered security nor expressed willingness to comply with any decree. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the Chamber Summons application was properly brought under Order 40 Rules 1, 2, 3, 4 and Order 22 Rule 22(1) of the Civil Procedure Rules

Holding

The application was incurably defective; stay pending appeal must be sought under Order 42 Rule 6 and injunctions cannot issue pending appeal.

Reasoning

The court held that the applicable law for stay pending appeal is Order 42 Rule 6, which deals with stay pending appeal, not Order 22 Rule 22(1), which deals with stay of execution generally. Order 40 does not contemplate injunctions pending appeal since there is already a judgment on the merit which the unsuccessful party seeks to overturn. An application brought under the wrong provisions cannot be cured by Article 159(d) of the Constitution.

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02

Whether the applicant met the conditions for stay of execution under Order 42 Rule 6(2)

Holding

The applicant satisfied only one of the three conditions (no unreasonable delay), failing to demonstrate substantial loss and to offer security.

Reasoning

The court enumerated the three conditions in Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security for due performance of the decree. The applicant only satisfied the delay condition. Instead of demonstrating substantial loss, the cornerstone of a stay application, he dwelt on the arguability of his appeal. On security, he deponed it was unnecessary and neither offered security nor expressed willingness to comply with any decree binding on him.

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Legal principles established

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  • Stay of execution pending appeal must be sought under Order 42 Rule 6 of the Civil Procedure Rules, and a temporary injunction cannot issue pending an appeal.
  • An application brought under provisions that do not provide for stay pending appeal is incurably defective.
  • Substantial loss is the cornerstone of an application for stay of execution pending appeal.

Court orders

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  1. 1.Dismissal of the Chamber Summons application dated 7th January, 2025 with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2, 3 and 4
  • Civil Procedure RulesOrder 22 Rule 22(1)
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Constitution of Kenya, 2010Article 159(d)
On appeal from
Magistrates' Court, Kabarnet
SPM ELC Case No. E018 of 2021
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules (appeal from the trial magistrate's court)

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, "Tuitoek v Kiberut (Environment and Land Appeal E002 of 2025) [2025] KEELC 1235 (KLR)", Case Analysis (2025). Chamber Summons application dated 7th January, 2025 (appeal from Kabarnet SPM ELC Case No. E018 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1235/eng@2025-03-11

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