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ELCDismissed(ELC suit number not stated in judgment)· [2025] KEELC 6089 (KLR)

Yator v Kiptoo & another (Environment and Land Case 98 of 2018) [2025] KEELC 6089 (KLR)

Environment and Land Court
18 September 2025
3,639 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff moved the Environment and Land Court at Eldoret by Notice of Motion dated 27th January 2025, under Sections 1, 1A, 3, 3A and 63(e) of the Civil Procedure Act and Orders 22, 42 and 51 of the Civil Procedure Rules, seeking stay of execution of the judgment and decree of 16th December 2024 pending an intended appeal to the Court of Appeal. He explained that judgment had been delivered in the parties' absence and he learned of it on 14th January 2025, and that the suit land, of which he is registered owner, was under threat of execution. The 1st Defendant countered that the land is ancestral land held in trust, that no notice of appeal or security had been provided, and that the applicant sought to stay a negative order dismissing his suit. The court isolated a single issue: whether execution of the judgment of 16th December 2024 should be stayed. Applying Order 42 Rule 6 and Butt v Rent Restriction Tribunal, it found the two-week delay excusable given the vacation break under Order 50 Rule 4. However, following James Wangalwa, it held that a mere threat of execution is not substantial loss, since the judgment did not evict the Plaintiff from his share of the land. No Notice of Appeal was on file, so no appeal could be rendered nugatory, and no security was offered. The application was dismissed with costs to the Defendants.

Key legal issues

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01

Whether the application for stay was made without unreasonable delay

Holding

Excluding the Court vacation period under Order 50 Rule 4, the delay of about two weeks was justified

Reasoning

Judgment was delivered on 16th December 2024; the applicant claimed he learned of it on 14th January 2025. The court found the parties and counsel had been served with the judgment notice but failed to attend, yet applying Order 50 Rule 4 (excluding 21st December to 13th January), the motion filed within about two weeks was timely.

p. 5
02

Whether the applicant demonstrated substantial loss

Holding

No; mere threat of execution is insufficient and the judgment did not evict the applicant from the suit land

Reasoning

Citing James Wangalwa, the court held that threatened execution is a lawful process and does not itself constitute substantial loss. The judgment left the applicant with his share of the suit land; he therefore failed to show irreparable harm to the essential core of his position if stay were refused.

p. 6
03

Whether the intended appeal would be rendered nugatory

Holding

No, because no Notice of Appeal or appeal was on record

Reasoning

Order 42 Rule 4 deems an appeal filed only upon notice of appeal. The court scoured the file and found no Notice of Appeal; the memorandum of appeal was an undated, unsigned annexure to an affidavit. Without a filed appeal, the applicant cannot claim nugatory effect.

p. 6
04

Whether security for the due performance of the decree was offered

Holding

No security was offered, and given the failures above the issue became moot

Reasoning

Under Order 42 Rule 6(2)(b), security is a condition for stay, offered as a sign of good faith. The applicant neither offered nor proposed any security. Since he had already failed on substantial loss and on the existence of an appeal, the security question was overtaken.

p. 7

Legal principles established

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  • A litigant, not the advocate, bears responsibility for following up on the progress of their case
  • Mere threat or commencement of execution does not amount to substantial loss under Order 42 Rule 6
  • A non-existent appeal cannot be rendered nugatory; the applicant must prove an appeal has been lodged

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 27th January, 2025 is dismissed
  2. 2.Costs of the application awarded to the Defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 3, 3A, 63(e)
  • Civil Procedure RulesOrder 42 Rule 6(1)(2)(4); Order 42 Rule 4; Order 22 Rule 22(1); Order 50 Rule 4; Order 51 Rule 1

Cases cited (15)

  • Butt vs Rent Restriction Tribunal
    (1982) eKLR
  • Tropical Commodities Suppliers Ltd & Others vs International Credit Bank Limited (in liquidation)
    (2004) 2 EA 331
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    (2012) eKLR
  • Century Oil Trading Company Limited vs Kenya Shell Limited
    Nairobi (Milimani) HCMCA No. 1561 of 2007
  • National Industrial Credit Bank Ltd vs Aquinas Francis Wasike & Another
    (2006) eKLR
  • Gianfranco Manenthi & Another vs Africa Merchant Assurance Co. Ltd
    (2019)
  • Kenya Shell Ltd vs B. Karuga Kibiru
    CA. No. 197 of 1986
  • Richard Muthusi vs Patrick Gituma Ngomo
  • Habo Agencies Limited vs Wilfred Odhiambo Musingo
    (2015) eKLR
  • Dr. Daniel Chebutuk Rotich vs Morgan Kimaset Chebutuk (Minor suing through his father and next friend Daniel Chebutuk Rotich)
    (2005) KEHC 601 (KLR)
  • Silverstein N. Chesoni
    [2002] 1 KLR 867
  • Mukuma v Abuoga
  • Wilson v Church (No 2)
    12 Ch D (1879) 454
  • Erinford Properties Limited v Cheshire County Council
    [1974] 2 All ER 448
  • Attorney General vs Emerson and Others
    24 QBD (1889) 56
Jurisdiction invoked
Sections 1, 1A, 3, 3A and 63(e) of the Civil Procedure Act; Order 22 Rule 22(1), Order 42 Rule 6(1)(2)(4) and Order 51 Rule 1 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, "Yator v Kiptoo & another (Environment and Land Case 98 of 2018) [2025] KEELC 6089 (KLR)", Case Analysis (2025). (ELC suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6089/eng@2025-09-18

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