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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Defendant/Applicant satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules
The application was filed without unreasonable delay, but the applicant failed to demonstrate substantial loss; stay was refused.
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.
Whether leave should be granted to J.K Bosek & Company Advocates to come on record for the Defendant/Applicant
Leave was granted since the Plaintiff/Respondent, having opposed in his replying affidavit, conceded the prayer in his submissions.
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
#- 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
#- 1.Leave is hereby granted to the firm of J.K Bosek and Company Advocates to come on record for the Defendant/Applicant
- 2.Each party shall bear own cost of the application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.