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ELCPartially AllowedNot stated in the judgment (ruling on Notice of Motion dated 20th May, 2024)· [2025] KEELC 1391 (KLR)

Tormoi (Suing as Personal Representative of the Estate of David Kiptormoi) v Saina (Suing as Personal Representative of the Estate of Joel Kipsaina Korir) (Environment & Land Case 90 of 2015) [2025] KEELC 1391 (KLR)

Environment and Land Court
20 March 2025
3,722 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kericho court refused to halt land execution because facing eviction alone is not enough to prove substantial loss on appeal.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kericho (L. A. Omollo, J) determined the Defendant/Applicant's Notice of Motion dated 20th May, 2024, brought under Order 7 Rule 9, Order 22, Order 51 Rule 1 & 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The underlying suit, commenced by plaint in 2011, concerned claims of trust over four land parcels (Kamara/Mau Summit Block 4/153 and 157 (Boror "B"), Kericho/Koita-Burot/289 and Kericho/Manaret/14), with the Defendant counterclaiming for declaration of ownership, eviction and injunction. Judgment delivered on 9th May, 2024 partially succeeded for the Plaintiff, cancelling the Defendant's registrations, ordering equal sharing of Kericho/Koita-Burot/289, and issuing an injunction, with no order as to costs between family members. The Defendant, now representing a deceased party's estate, sought leave for new advocates (J.K Bosek & Co. Advocates) to come on record and a stay of execution pending appeal. The court framed a single issue: whether the application had merit. Applying Order 42 Rule 6(2), it found the application filed without unreasonable delay but held that apprehended eviction was not proof of substantial loss, following Karungu v Masira. It further held that questions of pendency of appeal and extension of time belong to the Court of Appeal, and that third-party interests and the regularity of the decree were inconsequential to the application. The court allowed prayer 2 only, granting leave to the new advocates to come on record, refused the stay, and ordered each party to bear their own costs of the application.

Key legal issues

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01

Whether the Defendant/Applicant satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules

Holding

The application was filed without unreasonable delay, but the applicant failed to demonstrate substantial loss; stay was refused.

Reasoning

The court applied Order 42 Rule 6(2), noting the application was filed about three weeks after judgment and thus without unreasonable delay. However, on substantial loss, the applicant's claim of apprehended eviction was insufficient; following Karungu v Masira, imminent eviction under a decree issued after a full hearing is not proof of substantial loss. The court also held that issues of third-party interests, procedural regularity of the decree, and pendency of appeal were either inconsequential or for the Court of Appeal.

p. 8
02

Whether leave should be granted to J.K Bosek & Company Advocates to come on record for the Defendant/Applicant

Holding

Leave was granted since the Plaintiff/Respondent, having opposed in his replying affidavit, conceded the prayer in his submissions.

Reasoning

The Plaintiff/Respondent initially opposed the change of advocates on the ground that no leave is needed before the appellate court, but in submissions he did not oppose the new advocates coming on record. The court found no reason to disallow the prayer in light of the concession.

Legal principles established

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  • Imminent eviction pursuant to a valid decree is not, by itself, proof of substantial loss for purposes of stay of execution under Order 42 Rule 6(2).
  • Whether an appeal is pending before the Court of Appeal and/or whether time should be extended are questions for the Court of Appeal, not the trial court, on an application for stay.

Court orders

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  1. 1.Leave is hereby granted to the firm of J.K Bosek and Company Advocates to come on record for the Defendant/Applicant
  2. 2.Each party shall bear own cost of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 7 Rule 9
  • Civil Procedure RulesOrder 22
  • Civil Procedure RulesOrder 51 Rule 1 & 3
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 21 Rule 17
  • Civil Procedure RulesOrder 21 Rule 8
  • Court of Appeal Rules, 2022Rule 84(1)

Cases cited (7)

  • S.K Tarwadi v Veronica Muehlemann
    [2019] eKLR
  • Butt vs Rent Restriction Tribunal
    Civil Application No. 6 of 1979 (1982) KLR
  • Kungu v Kaarumbi
    (Civil Appeal 335 of 2023) [2024] KEHC 3062 (7th March 2024) (Ruling)
  • RWW v EKW
    [2019] eKLR
  • Absalom Dova v Tarbo Transporters
    [2013] eKLR
  • Silverstein v Chesoni
    (2002) 1 KLR 867
  • Karungu v Masira & another
    (Environment & Land Case 540 of 2016) [2024] KEELC 5683 (KLR) (25 July 2024) (Ruling)
Jurisdiction invoked
Order 7 Rule 9, Order 22, Order 51 Rule 1 & 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Tormoi (Suing as Personal Representative of the Estate of David Kiptormoi) v Saina (Suing as Personal Representative of the Estate of Joel Kipsaina Korir) (Environment & Land Case 90 of 2015) [2025] KEELC 1391 (KLR)", Case Analysis (2025). Not stated in the judgment (ruling on Notice of Motion dated 20th May, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1391/eng@2025-03-20

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