Elisha Kare Busienei & 3 others v Japhet Kipyego Chepkwony (suing as the administrator of the Estate of Elizabeth J. Sirma & 17 others [2016] KEELC 228 (KLR)
The bottom line
#A Kenyan court refused to pause execution of a land judgment, ruling that stay applications require a real appeal and proof of actual loss—not sentimental attachment.
What this practically means
#Executive summary
#Key legal issues
#Functus officio and jurisdiction to hear stay applications
The court retained jurisdiction; Order 42 of the Civil Procedure Rules statutorily empowers it to hear stay applications notwithstanding delivery of judgment. The Dickson Muricho Muriuki case was distinguishable as it concerned a final appellate decision.
The respondents argued the court was functus officio after judgment, relying on a Court of Appeal decision. The court distinguished that authority: it dealt with a court that had rendered a final decision and was then asked to address new issues. Here, jurisdiction to entertain stay applications pending appeal is donated by statute under Order 42, so the functus officio doctrine had no application.
Competence of the second defendant's stay application
The application was incompetent and misconceived because no notice of appeal had been filed, hence no pending appeal existed.
Under Order 42 Rule 6(4), an appeal to the Court of Appeal is deemed filed when notice of appeal is given under that court's rules. The second defendant conceded she had not filed a notice of appeal and only intended to seek extension of time. A stay of execution cannot issue in respect of a non-existent appeal.
Substantial loss under Order 42 Rule 6(2)
The first defendant failed to demonstrate substantial loss; the delay of about one and a half months was not unreasonable, but no substantial loss was shown and security was therefore not considered.
There is no set criterion for assessing substantial loss; it depends on the circumstances of each case. The claim of buildings and eviction was unsupported by evidence, sentimental attachment is insufficient, the first defendant was one of six partners entitled to the properties, and his prior sales in defiance of a consent preservation order showed granting stay would enable further sales to defeat the judgment.
Legal principles established
#- Where jurisdiction to entertain an application for stay pending appeal is donated by statute, the functus officio doctrine does not bar the court of first instance from hearing it
- Stay of execution pending appeal requires that an appeal actually exists; a notice of appeal is a prerequisite under Order 42 Rule 6(4)
- Sentimental attachment to property, without evidence of buildings or other concrete prejudice, does not amount to substantial loss
Court orders
#- 1.Dismissal of both applications for stay of execution pending appeal
- 2.Costs of both applications to the respondents
- Jurisdiction invoked
- Order 42 of the Civil Procedure Rules (stay of execution pending appeal); original suit before the court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nehemiah Kiprop Kiplagat & 18 others v Radio Frequency Systems Limited & 2 others; Geoffrey Ng'ang'a Tambara(Intended Interested Party/Applicant) [2020] KEELRC 245 (KLR)[2020] KEELRC 245 (KLR)13 Nov 2020distinguished
Cite this brief
#Cite this brief
Caselaw, "Elisha Kare Busienei & 3 others v Japhet Kipyego Chepkwony (suing as the administrator of the Estate of Elizabeth J. Sirma & 17 others [2016] KEELC 228 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/228/eng@2016-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.