[2023] KEELC 20602 (KLR)
The court found that since the respondents had already filed an application for stay of execution before the Court of Appeal, which had been certified urgent and was awaiting determination, it would be improper for the Environment and Land Court to grant the orders sought by the applicant. Granting such orders could...
Source-derived case information.
- Citation
- [2023] KEELC 20602 (KLR)
- Parties
- Plaintiff: Kite Arap Kipyesang; Defendant: Rehema Jemaiyo Chepkonga; Defendant: William Kite; Defendant: Richard Kiprotich Kibet (For and on Behalf of the Estate of John Kibet Kipyasang)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 273 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Post Judgment Applications
- Outcome
- applications dismissed
- Judges
- EO Obaga
- Legal Topics
- Removal of Caution, Eviction Orders, Stay of Execution, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kite Arap Kipyesang
Plaintiff
Rehema Jemaiyo Chepkonga
Defendant
William Kite
Defendant
Richard Kiprotich Kibet (For and on Behalf of the Estate of John Kibet Kipyasang)
Defendant
Procedural Posture
Environment and Land Case / Ruling on Post Judgment Applications
Legal Issues
- 1 Whether the court should order removal of a caution lodged against the suit property pending appeal.
- 2 Whether the court should order provision of security during execution of the decree when an application for stay is pending before the Court of Appeal.
Ratio Decidendi
The court found that since the respondents had already filed an application for stay of execution before the Court of Appeal, which had been certified urgent and was awaiting determination, it would be improper for the Environment and Land Court to grant the orders sought by the applicant. Granting such orders could undermine the appellate process and potentially render the application for stay nugatory. The court therefore dismissed the applications for removal of caution and provision of security, but clarified that the applicant would be at liberty to pursue execution if the Court of Appeal ultimately denied the stay.
Court Disposition
applications dismissed
Orders
- The application dated 9/6/2023 for removal of caution is dismissed.
- The application dated 20/6/2023 for provision of security is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
Kipyesang v Chepkonga & 2 others (Environment & Land Case 273 of 2017) [2023] KEELC 20602 (KLR) (12 October 2023) (Ruling)
Neutral citation: [2023] KEELC 20602 (KLR)
Republic of Kenya
In the Environment and Land Court at Eldoret
Environment & Land Case 273 of 2017
EO Obaga, J
October 12, 2023
Between
Kite Arap Kipyesang
Plaintiff
and
Rehema Jemaiyo Chepkonga
1st Defendant
William Kite
2nd Defendant
Richard Kiprotich Kibet (For and on Behalf of the Estate of John Kibet Kipyasang)
3rd Defendant
Ruling
1. This is a ruling in respect of two separate applications both brought by the Decree Holder/Applicant. The first application is dated 9/6/2023. It seeks removal of a caution which was lodged against title for Irong/Iten/3625. The second application is dated 20/6/2023. It seeks provision of security during the execution of a decree arising from a judgement delivered on 9/3/2023.
2. The two applications are basically seeking orders which will pave way for execution arising from this court’s judgement delivered on 9/3/2023. In its judgement, the court ordered eviction of the Judgement Debtors/Respondents.
3. I have perused the affidavits in support of the two applications as well as the replying affidavits in position of the two applications. I have also considered the submissions by the parties herein. There is no contention that the respondents have preferred an appeal against the judgement to the Court of Appeal.
4. I have perused the further affidavit sworn on 21/9/2023 by the respondents. The respondents have filed an application for stay of execution before the Court of Appeal. The application before the Court of Appeal was certified urgent and directions on its disposal were given. This being the case, it will not be in order to allow the applications before the Court of Appeal renders its ruling on the pending application. I will for this reason dismiss the two applications with no order as to costs. The applicant will be at liberty to pursue execution in case the application for stay is denied by the Court of Appeal.It is so ordered.
DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 12TH DAY OF OCTOBER, 2023. E. O. OBAGAJUDGEIn the virtual presence of;Ms. Lagat for Applicant.Court Assistant –BrianE. O. OBAGAJUDGE12TH OCTOBER, 2023