[2021] KEELC 4624 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT KERICHO

ELC NO. 103 OF 2017 (O.S)

JOSHUA KAMOING...........................................................PLAINTIFF/RESPONDENT

VERSUS

SIMON BARCHOK...........................................................1st DEFENDANT/APPLICANT

DANIEL BARCHOK........................................................2nd DEFENDANT/APPLICANT

PHILIP KIPSANG MARITIM.........................................3rd DEFENDANT/APPLICANT

FLORENCE CHEPKWONY (sued in her capacity as the administrator of the estate of

PAUL KIPYEGON CHEPKWONY (DECEASED)........4th DEFENDANT/APPLICANT

RULING

1. Pursuant to a judgment delivered by the Court on the 20th May 2020, the Applicant/Appellants have now filed the present Application by way of a Notice of Motion dated 10th June 2020 brought under the provisions of Section 1A,1B, 3, 3A, 63(b) & (e), 66 of the Civil Procedure Act, Rule 5 of the Court of Appeal Rules 2010 and Order 22 Rule 22, Order 51 of the Civil Procedure Rules where they seek for orders of stay of execution of the judgement and all consequential orders arising therefrom pending the hearing and determination of their intended Appeal.

2. The Applicants also seek for orders that the Land Registrars Kericho and Bomet be ordered to register a restriction over title parcel numbers LR No. Kericho/Boito/140 (and/or the resultant titles therefrom) barring any transfer, mutation and/or any dealings whatsoever pending the hearing and determination of the intended Appeal and for costs of the application to be in cause and any other orders that the Court may deem fit to grant in the circumstance.

3. The said Application is supported by the grounds set on its face as well as on the supporting affidavit of Philip Kipsang Maritim the 3rd Applicant herein, on his behalf and on behalf of the 1st and 2nd Applicants, dated the 10th June 2020.

4. The application was opposed by the Respondents through his replying affidavit dated 26th June 2020 to the effect that the same was not made in good faith, lacked merit and was a veiled attempt to defeat the course of justice.

5. On the 15th June 2020, there were interim orders of stay of execution pending further orders issued wherein after parties were directed to canvass the said application by way of written submissions. Parties complied.

6. The Court has however observed that the power to stay execution of judgment/decree is a discretionary power exercised by the Court. I have since gained sight of the provisions under which the application was brought specifically being under Order 22 Rule 22 of the Civil Procedure Rules which provisions provide as follows:

“(1) The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay the execution, or for any other order relating to the decree or execution which might have been made by the Court of first instance, or appellate Court if execution has been issued thereby, or if application for execution has been made thereto.

(2) Where the property or person of the judgment-debtor has been seized under an execution, the Court which issued the execution may order the restitution of such property or the discharge of such person pending the results of the application.

(3) Before making an order to stay execution or for the restitution of property or the discharge of the judgment-debtor the Court may require such security from, or impose such conditions upon, the judgment-debtor as it thinks fit.”

7. The import of Order 22 Rule 22 is vast in that the Court may stay execution of a decree that it passed. However the Applicants in the preset case seek to stay the execution of the judgement and all consequential orders arising therefrom pending the hearing and determination of an intended Appeal. To this effect the Court finds that the appropriate provision of the law that the Applicants ought to have come to Court were the provisions of Order 42 Rule 6(1) of the Civil Procedure Rules which provide as follows:

(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the Court appealed from may order but, the Court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the Court appealed, the Court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the Court from whose decision the appeal is preferred may apply to the appellate Court to have such order set aside.

(2) No order for stay of execution shall be made under sub-rule (1) unless

a) the Court is satisfied that substantial loss may result to the applicant unless the Order is made and that the application has been made without unreasonable delay; and

b) such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant

8. The question of stay pending appeal has been canvassed at length in various authorities, such as the Court of Appeal decision in Chris Munga N. Bichage v Richard Nyagaka Tongi & 2 Others [2013] eKLRwhere it was held thus:-

“……………. The law as regards applications for stay of execution, stay of proceedings or injunction is now well settled. The applicant who would succeed upon such an application must persuade the Court on two limbs, which are first, that his appeal or intended appeal is arguable, that is to say it is not frivolous. Secondly, that if the application is not granted, the success of the appeal, were it to succeed, would be rendered nugatory. These two limbs must both be demonstrated and it would not be enough that only one is demonstrated………”

9. In my view thereto, I find the application dated 10th June 2020 incompetent and proceed to strike it out with costs to the Respondent.

Dated and delivered at Kericho this 28th day of January 2021

M.C. OUNDO

ENVIRONMENT & LAND – JUDGE