Suter v Kipsait (Sued as the Legal Representative of James Cheboi Chesir (Deceased) (Environment and Land Case 77 of 2012) [2025] KEELC 7214 (KLR)
The bottom line
#The Environment and Land Court in Kitale dismissed a landowner's bid to pause enforcement of a judgment because she offered no proof of loss and no security.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated substantial loss warranting a stay of execution
No - the applicant failed to provide documentary or empirical evidence of substantial loss; averments that the land was her home, source of livelihood or occupied by third parties were unsupported
The court found that paragraphs 18-29 of the supporting affidavit were mere assertions without documentary evidence. The applicant did not avail evidence of developments on the land, occupants, or quantification of income. Following James Wangalwa v Cheseto and Samvir Trustee Ltd v Guardian Bank Ltd, execution per se is not substantial loss; register entries are reversible on appeal.
Whether the applicant offered adequate security for the due performance of the decree
No - neither a copy of the title deed nor an up-to-date official search certificate was availed
Security is a mandatory condition under Order 42 Rule 6(1) as explained in Vishram Ravji Halai v Thornton & Turpin. The applicant merely undertook to deposit the title deed but never availed a copy or an official search showing its status, so the condition was not satisfied.
Whether the applicant acted in good faith and made full material disclosure
No - the deponent falsely blamed the court for determining unpleaded issues of fraud and forgery, issues not raised in the draft memorandum of appeal and not mentioned in the judgment
A party seeking a discretionary order must make full disclosure and act in good faith. The affidavit at paragraphs 8 and 14 blamed the court for determining unpleaded fraud/forgery issues, but the draft memorandum of appeal raised no such issues and the judgment made no reference to them, amounting to false swearing which undermines the deponent's credibility.
Whether fears of breach of peace constitute sufficient cause for a stay
No - fear of consequences of the court's decisions cannot amount to sufficient cause
The applicant averred that execution would cause chaos, anarchy and breach of peace. The court held such averments depict an applicant who does not value the rule of law; courts must act without fear or favour, and selling fear of a decision's consequences cannot drive the successful party out of the seat of justice.
Legal principles established
#- Stay of execution pending appeal requires sufficient cause, and the main purpose is to ensure a successful appeal is not rendered nugatory while balancing the rights of the successful party
- Substantial loss is the cornerstone for the grant of a stay pending appeal and must be proven by credible evidence beyond mere lawful enforcement of a judgment
- Execution per se does not amount to substantial loss; a party must demonstrate factors that negate the substratum of the appeal
- Entries into the register of title are not permanent or irreversible and can be reversed on appeal
- Written submissions are not evidence and cannot replace pleadings or affidavit evidence
- False swearing by a deponent undermines credibility and casts doubt on all other averments
Court orders
#- 1.The application dated 12/8/2025 seeking stay of execution pending appeal is dismissed
- 2.The applicant to pay the costs of the application
- Jurisdiction invoked
- Order 42 Rule 6(1) of the Civil Procedure Rules; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Suter v Kipsait (Sued as the Legal Representative of James Cheboi Chesir (Deceased) (Environment and Land Case 77 of 2012) [2025] KEELC 7214 (KLR)", Case Analysis (2025). Application dated 12/8/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7214/eng@2025-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.