Kapset Tea Factory v Cheruiyot & 11 others (Environment and Land Case 25 of 2020) [2026] KEELC 4380 (KLR)
The bottom line
#A Kenyan land court refused to halt execution of a Ksh. 6.46 million judgment because the losing party offered no security and showed no real loss.
What this practically means
#Executive summary
#Key legal issues
#Preliminary objection to the late filing of the Replying Affidavit
Dismissed; the Replying Affidavit is admissible despite being filed out of time
The court invoked Article 159(2)(d) of the Constitution and the oxygen principle in Sections 1A & 1B of the Civil Procedure Act, holding that substantive justice should not be defeated by rigid adherence to procedural rules, and admitted the affidavit out of time so parties could be heard on merits.
Whether a post-judgment Notice of Motion can be amended
No; applications are not amendable as pleadings under Order 8
The court held that the stay application is not a pleading as defined under Section 2 of the Civil Procedure Act, and the Civil Procedure Rules only permit amendment of pleadings, not applications. Relying on Jaribu Credit Traders Ltd v Fidelity Bank Ltd, an application is a pleading sui generis which cannot be amended; the correct course is withdrawal and filing of a fresh application.
Revival of ELC No. 270 of 2017 and its Counter-claim
Declined and dismissed entirely
The court found the relief speculative and misplaced: revival of a suit cannot be sought in a stay application in a concluded matter, the court is functus officio on the substantive issues, and the applicant failed to annex any pleadings, proceedings or orders evidencing the alleged suit. A party invoking the court's discretion must place sufficient material before it.
Whether the test for stay of execution pending appeal was met
Not met; stay refused
Applying Order 42 Rule 6 and the Butt v Rent Restriction Tribunal principles, the applicant had to show no undue delay, substantial loss, and security. The applicant offered no security for the Ksh. 6,461,612 decree, did not controvert the respondent's averment that structures on the land were erected post-judgment, and mere allegation of loss from lawful execution is insufficient.
Legal principles established
#- A Notice of Motion application is not a pleading and cannot be amended under Order 8 of the Civil Procedure Rules; the proper course is withdrawal and filing of a fresh application
- An applicant for stay of execution pending appeal must show that the application was brought without undue delay, that substantial loss may result unless stay is granted, and must furnish security
- An appeal does not operate as an automatic stay of execution; the two conditions in Order 42 rule 6(2) must be met
- A court is functus officio on substantive issues of a concluded suit and cannot revive a suit or counter-claim in a post-judgment stay application
- Substantial loss is a qualitative, not mathematical, concept
Court orders
#- 1.The Notice of Preliminary Objection dated 25th May 2026 is dismissed entirely with costs
- 2.The Notice of Motion Application dated 30th April 2026 is dismissed entirely with costs
- 3.The Notice of Motion Application dated 17th April 2026 is dismissed entirely with costs to the Plaintiff/Respondent
- Jurisdiction invoked
- Order 51 rule 1 and Order 22 rule 22 of the Civil Procedure Rules, Sections 3A & 6(e) of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kapset Tea Factory v Cheruiyot & 11 others (Environment and Land Case 25 of 2020) [2026] KEELC 4380 (KLR)", Case Analysis (2026). ELC Case No. 25 of 2020 (consolidated with ELC Case No. E009 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4380/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.