Yator v Kiptoo & another (Environment and Land Case 98 of 2018) [2025] KEELC 6089 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the application for stay was made without unreasonable delay
Excluding the Court vacation period under Order 50 Rule 4, the delay of about two weeks was justified
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.
Whether the applicant demonstrated substantial loss
No; mere threat of execution is insufficient and the judgment did not evict the applicant from the suit land
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.
Whether the intended appeal would be rendered nugatory
No, because no Notice of Appeal or appeal was on record
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.
Whether security for the due performance of the decree was offered
No security was offered, and given the failures above the issue became moot
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.
Legal principles established
#- 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
#- 1.The Plaintiff's Notice of Motion dated 27th January, 2025 is dismissed
- 2.Costs of the application awarded to the Defendants
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.