[2024] KEELC 113 (KLR)
The court found that the applicant's suit was dismissed with costs, which constitutes a negative order incapable of being stayed. The only execution possible is for costs, and the applicant failed to demonstrate that payment of costs would render the appeal nugatory or that the respondents would be unable to refund...
Source-derived case information.
- Citation
- [2024] KEELC 113 (KLR)
- Parties
- Plaintiff: Stephen Kibiwott Cheruiyot; Defendant: Luke Chemweno; Defendant: Peris Jelagat Limeo; Defendant: Charles Kiprotich Tanui; Defendant: Dr Choge Bartuiyot
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 649 of 2012
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondents
- Judges
- EO Obaga
- Legal Topics
- Stay of Execution, Costs Taxation, Appeal Procedure, Substantial Loss, Negative Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Kibiwott Cheruiyot
Plaintiff
Luke Chemweno
Defendant
Peris Jelagat Limeo
Defendant
Charles Kiprotich Tanui
Defendant
Dr Choge Bartuiyot
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds for stay of execution of costs pending appeal.
- 2 Whether execution of a negative order (dismissal with costs) can be stayed.
- 3 Whether the applicant will suffer substantial loss if stay is not granted.
Ratio Decidendi
The court found that the applicant's suit was dismissed with costs, which constitutes a negative order incapable of being stayed. The only execution possible is for costs, and the applicant failed to demonstrate that payment of costs would render the appeal nugatory or that the respondents would be unable to refund the costs if the appeal succeeds. The applicant did not discharge the burden of proving substantial loss or respondent's inability to refund. The court relied on the principle that substantial loss is the cornerstone for granting stay, as established in Kenya Shell Limited v Karuga. Consequently, the application for stay of execution was found to be without merit and was...
Court Disposition
application dismissed with costs to the respondents
Orders
- The application for stay of execution is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
32 paragraphs
Cheruiyot v Chemweno & 3 others (Environment & Land Case 649 of 2012) [2024] KEELC 113 (KLR) (25 January 2024) (Ruling)
Neutral citation: [2024] KEELC 113 (KLR)
Republic of Kenya
In the Environment and Land Court at Eldoret
Environment & Land Case 649 of 2012
EO Obaga, J
January 25, 2024
Between
Stephen Kibiwott Cheruiyot
Plaintiff
and
Luke Chemweno
1st Defendant
Peris Jelagat Limeo
2nd Defendant
Charles Kiprotich Tanui
3rd Defendant
Dr Choge Bartuiyot
4th Defendant
Ruling
1. This is a ruling in respect of a Notice of motion dated 25. 9.2023 in which the judgment Debtor/ Applicant seeks the following orders:-1. That service of this application be dispensed with in the first instance and the same be certified as urgent.2. That this honorable court do be pleased to stay all the execution proceedings emanating from the judgment delivered on the 27th of October, 2022 pending the hearing and determination of this application inter-partes.3. That the honorable court do be pleased to stay all the execution proceedings emanating from the judgment delivered on the 27th of October, 2022 pending the hearing and determination of Eldoret Court of Appeal Civil Appeal No. E051 of 2022. 4.That cost sf this application be provided for.
2. The Applicant contends that judgment in this matter was delivered on 27. 10. 2022 wherein his suit was dismissed with costs and the 4th Decree Holder/Respondent’s counter-claim was allowed with costs. He states that costs have since been taxed at Kshs 4,208,758/= and the process of execution has since been put in place.
3. The Applicant further contends that he has since appealed against the judgment in Eldoret Civil Appeal No. E051 of 2022 and that if there is no stay of execution granted, his appeal will be rendered nugatory.
4. The Applicant’s application has been opposed by the 1st, 3rd and 4th Defendant/Respondents through grounds of opposition and replying affidavits dated 3. 10. 2023 and replying affidavits sworn on 6. 10. 2023 and 11. 10. 2023 respectively. The Respondents contend that the Applicant’s application has been filed after one year after judgment and 5 months after the costs were taxed.
5. The Respondents also contend that the application has been brought solely to scuttle the notice to show cause and prevent the Decree Holders from enjoying the fruits of their judgment. The Respondents also argue that the Applicant has not demonstrated what substantial loss he will suffer if execution was not stayed.
6. I have considered the Applicant’s application as well as the opposition to the same by the Respondents. I have also considered the submissions by the parties. The only issue for determination is whether the Applicant has demonstrated that he has grounds to warrant issuance of stay of execution.
7. As I have already stated hereinabove, the Applicant’s suit was dismissed with costs. This was a negative order which is incapable of being stayed. The Respondents are only seeking to execute on costs. Execution of costs will not render the Applicant’s appeal nugatory. Should he succeed in the appeal, he will be refunded the costs which he would have paid.
8. The Applicant did not state anywhere that should he pay the costs, the Respondents will be incapable of refunding the same incase the appeal succeeds. The burden of proving that the Respondents are incapable of refunding the costs did not shift to the Respondents. Infact the 4th Respondent who was found to be the lawful owner of the suit property stated that he is a medical doctor who also earns rental income from the apartments on the suit property and is capable of refunding the costs incase the Applicant’s appeal succeeds.
9. In the case of Kenya Shell Limited –s- Karuga 1982 – 88 IKAR, the Court of Appeal held as follows: -“If there is no evidence of substantial loss to the Applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay.”
10. It is clear from the above analysis that the Applicant’s application is devoid of merit. The same is dismissed with costs to the Respondents.
It is so orders.
DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 25TH DAY OF JANUARY, 2024. E. O. OBAGAJUDGEIn the virtual presence of;Mr. Rotich for Mr. Njuguna for 1st Defendant.Mr. Ogongo for 3rd Defendant.Court Assistant -BrianE. O. OBAGAJUDGE25TH JANUARY, 2024