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ELCDismissedApplication dated 12/8/2025· [2025] KEELC 7214 (KLR)

Suter v Kipsait (Sued as the Legal Representative of James Cheboi Chesir (Deceased) (Environment and Land Case 77 of 2012) [2025] KEELC 7214 (KLR)

Environment and Land Court
22 October 2025
2,157 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (Hon. C.K. Nzili, Judge) delivered on 22 October 2025 on the judgment debtor/defendant's application dated 12/8/2025 seeking a stay of execution of the court's decree pending an intended appeal to the Court of Appeal. The underlying suit concerned 7 acres out of a 20-acre parcel said to be held in trust since 1964 for the applicant's late father's estate. The applicant relied on the draft memorandum of appeal, contending the land was her home and source of livelihood, that the loss would be irreparable, that execution was imminent, and offering to deposit the original title deed as security. The respondent opposed, asserting the applicant's family did not reside on the land, third parties were in occupation, and the applicant had failed to demonstrate substantial loss or offer security. The court, applying Order 42 Rule 6(1) of the Civil Procedure Rules, held that substantial loss is the cornerstone of a stay application and must be proven with tangible, cogent documentary evidence; execution per se is not substantial loss, and register entries are reversible on appeal. It found the applicant's affidavit comprised unsupported assertions, that no security (title deed or official search) had been availed, and that the applicant's claim that the court had determined unpleaded fraud and forgery issues was false, undermining her credibility. Fears of breach of peace could not constitute sufficient cause. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the applicant demonstrated substantial loss warranting a stay of execution

Holding

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

Reasoning

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.

p. 4
02

Whether the applicant offered adequate security for the due performance of the decree

Holding

No - neither a copy of the title deed nor an up-to-date official search certificate was availed

Reasoning

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.

p. 4
03

Whether the applicant acted in good faith and made full material disclosure

Holding

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

Reasoning

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.

p. 3
04

Whether fears of breach of peace constitute sufficient cause for a stay

Holding

No - fear of consequences of the court's decisions cannot amount to sufficient cause

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application dated 12/8/2025 seeking stay of execution pending appeal is dismissed
  2. 2.The applicant to pay the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1), Order 42 Rule 6(a)
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Penal CodeSection 108(1)(a)

Cases cited (11)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Kenya Shell Ltd v Benjamin Karuga Kibiru
    [1986] eKLR
  • James Wangalwa v Agnes Naliaka Cheseto
    [2012] eKLR
  • RWW v EKW
    [2019] eKLR
  • Mukuma v Abuoga
    [1988] KLR 645
  • Simon Mugo Rutere v Republic
    [2021] KEHC 2612 (KLR)
  • Stanley Kinyanjui v Tony Keter & Others
    [2013] eKLR
  • FWK v JGK
    Civil Application E042 of 2024 [2025] KECA 592 (KLR) (14th March 2025) (Ruling)
  • Vishram Ravji Halai v Thornton & Turpin
    [1990] KLR 365
  • Jason Ngumba Kagu (Suing As The Personal Representative Of Nancy Nyawira Ngumba (Deceased) & 2 others v Intra Africa Assurance Co. Limited
    [2014] KEHC 5979
  • Samvir Trustee Ltd v Guardian Bank Ltd
    Nairobi Milimani HCC 798 of 1997
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

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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, "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.