Tiepon & 5 others v Tiepon & another (Land Case Appeal E009 of 2026) [2026] KEELC 4576 (KLR)
The bottom line
#A Kenyan court threw out a request to pause a land judgment because the lawyer—not the client—swore the supporting affidavit on contested facts.
What this practically means
#Executive summary
#Key legal issues
#Whether an application for stay of execution can stand when its supporting affidavit, sworn by the advocate on contested issues, is defective
The affidavit sworn by the advocate on contentious issues was defective and struck out, leaving the application unsupported; the threshold for stay of execution under Order 42 Rule 6 was not met
The court agreed that the general rule is that an advocate should not swear affidavits on contested issues, following Court of Appeal authority in Ibrahim v Mulisa, Pattni v Ali and Turea Limited v Mohammed. Since the affidavit addressed substantial loss, prejudice and occupation of the suit property — all contested factual matters — it was struck out. Without a valid supporting affidavit, the stay conditions under Order 42 Rule 6 were not addressed or demonstrated, and the application failed.
Whether the applicants demonstrated substantial loss and prejudice to warrant stay of execution under Order 42 Rule 6
No substantial loss or prejudice was demonstrated since the supporting affidavit was struck out
The principles for stay of execution under Order 42 Rule 6, notably substantial loss and prejudice, had to be demonstrated on evidence. The only evidence before the court was the advocate's affidavit, which was defective. Consequently the issues of substantial loss and prejudice 'have not been addressed and demonstrated' and the application failed to meet the threshold for the discretionary relief sought.
Legal principles established
#- The general rule is that advocates should not swear affidavits on contested matters where the client is available to do so
- It is not the swearing of an affidavit by an advocate per se that renders it defective, but swearing on contentious matters of which the advocate has no knowledge
Court orders
#- 1.The supporting affidavit sworn by Mr. Leteipa Tuyia advocate struck out as defective
- 2.The Notice of Motion application dated 17.04.2026 seeking stay of execution dismissed
- 3.Costs of the application awarded to the Respondent
- On appeal from
- Kilgoris ELC
- ELC No. E027/2026
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tiepon & 5 others v Tiepon & another (Land Case Appeal E009 of 2026) [2026] KEELC 4576 (KLR)", Case Analysis (2026). Notice of Motion dated 17.04.2026 (arising from Kilgoris ELC No. E027/2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4576/eng@2026-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.