Case ID:167950

Jackson Kiprotich Kibor v Kipruto Arap Lelei & 19 others [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case 94 of 2016

Parties:

Jackson Kiprotich Kibor v Kipruto Arap Lelei, Samuel Kiprono Samoei, Tanguar Arap Suge, Serei Arap Lel Nengit, Chelule Keino, Wesley Kimeli Sambai, Wilson Kipkering Kogo, Kiprotich Arap Kibiwott, Gedion Kipruto Chemiron, The Attorney General, Elkana Kipleting Kibor, Evans Kipkosgei Kibor, Ezekiel Kipng’etich Kibor, Erick Kipchumba Kibor, Raymond Kibitok Kibor, Kesenche “B”, Kesenche “A”, Edwin Kipkoech Kibor, Chief Land Registrar & County Land Registrar, Uasin Gishu County

Date Delivered:

16 Dec 2020

Case Class:

Civil

Court:

Environment and Land Court at Eldoret

Case Action:

Ruling

Judge(s):

Stephen Murigi Kibunja

Citation:

Jackson Kiprotich Kibor v Kipruto Arap Lelei & 19 others [2020] eKLR

Advocates:

Mr. Nyandieka for the Plaintiff/Respondent.

Mr. Kipnyekwei for 2nd to 5th, 8th and 9th Defendants/Applicants and

Mr. Maina for 11th to 14th and 16th Defendants/Applicants.

Court Division:

Environment and Land

County:

Uasin Gishu

Advocates:

Mr. Nyandieka for the Plaintiff/Respondent.

Mr. Kipnyekwei for 2nd to 5th, 8th and 9th Defendants/Applicants and

Mr. Maina for 11th to 14th and 16th Defendants/Applicants.

Extract:

0

History Advocates:

Both Parties Represented

Case Outcome:

Notices of motion dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET

E & L CASE NO. 94 OF 2016

JACKSON KIPROTICH KIBOR……………………….…..…..PLAINTIFF

VERSUS

KIPRUTO ARAP LELEI……………………………….…..1

ST

DEFENDANT

SAMUEL KIPRONO SAMOEI……………………….….2

ND

DEFENDANT

TANGUAR ARAP SUGE………………………….…...….3

RD

DEFENDANT

SEREI ARAP LEL NENGIT……………………………...4

TH

DEFENDANT

CHELULE KEINO………………………………….……...5

TH

DEFENDANT

WESLEY KIMELI SAMBAI……………………………...6

TH

DEFENDANT

WILSON KIPKERING KOGO…………………………..7

TH

DEFENDANT

KIPROTICH ARAP KIBIWOTT………………………….8

TH

DEFENDANT

GEDION KIPRUTO CHEMIRON…………………….…9

TH

DEFENDANT

THE ATTORNEY GENERAL……………………..…….10

TH

DEFENDANT

ELKANA KIPLETING KIBOR……………………….…11

TH

DEFENDANT

EVANS KIPKOSGEI KIBOR…………………………….12

TH

DEFENDANT

EZEKIEL KIPNG’ETICH KIBOR……………………...13

TH

DEFENDANT

ERICK KIPCHUMBA KIBOR………………………..…14

TH

DEFENDANT

RAYMOND KIBITOK KIBOR…………………….…...15

TH

DEFENDANT

KESENCHE “B”…………………………………………..16

TH

DEFENDANT

KESENCHE “A”………………………………………..…17

TH

DEFENDANT

EDWIN KIPKOECH KIBOR…………………………….18

TH

DEFENDANT

THE CHIEF LAND REGISTRAR…………………….…19

TH

DEFENDANT

THE COUNTY LAND REGISTRAR,

UASIN GISHU COUNTY………………………………….20

TH

DEFENDANT

RULING

[

NOTICE OF MOTION UNDER CERTIFICATE OF URGENCY DATED 3

RD

JUNE 2020, 4

TH

JUNE, 2020 AND 13

TH

JUNE, 2020

]

1. The 2

nd

to 5

th

, 8

th

and 9

th

Defendants filed the Notice of Motion dated 4

th

June, 2020 seeking for a temporary order of stay of execution of the judgment delivered on 6

th

May, 2020 pending the hearing and determination of the intended appeal and costs. The Motion is based on the six (6) grounds on its face and supported by the affidavit of

Samwel Kiprono Samoei

, the 2

nd

Defendant, sworn on the 4

th

June, 2020. That it is their case that they have filed the Notice of Appeal dated 19

th

May, 2020 to the judgment of 6

th

May, 2020. That they are very senior citizens and stand to suffer irreparable damages if they are evicted from the suit land which hosts their home. That they are willing to abide by any terms the Court may impose in granting their application that has been filed expeditiously for the interest of justice.

2. The 11

th

Defendant also filed the Notice of Motion dated the 21

st

May, 2020 under Certificate of Urgency dated 13

th

May, 2020 on the 9

th

June, 2020, seeking for stay of execution of the orders and or decree that the Land Registrar, Uasin Gishu County, do nullify and cancel the consolidation, subdivision and issuance of title numbers

Soy/Kapsang Block 10(Samito) 1-20

, pending the inter-parte hearing and determination of the appeal and costs. The application is based on the seven

(7)

grounds on its face and supported by the affidavit sworn by

Elkanah Kipleting Kibor

on the 21

st

May, 2020. That it is the 11

th

Defendant’s case that he filed the Notice of Appeal dated the 15

th

May, 2020 after the judgment was delivered on 5

th

May, 2020. That if the Court’s judgment is executed, he will suffer irreparably and that the stay order should be granted pending the appeal’s hearing and determinations.

3. The 13

th

and 18

th

Defendants/Applicants filed the Notice of Motion dated 3

rd

June, 2020 seeking for stay of execution of the judgment delivered on 6

th

May, 2020 and temporary injunction restraining the Plaintiff by himself, agents or servants from selling, disposing, transferring, charging and or in any other manner interfering with

L. R. No. 8300

and

8301

, pending the hearing and determination of the intended appeal and costs. The application is supported by the affidavits sworn by

Ezekiel Kipngetich Kibor

, 13

th

Defendant and

Michele

Chebet Saina

, widow of the 18

th

Defendant,

Edwin Kipkoech Kibor

. That it is their case that they have filed the notice of appeal on the judgment delivered on 6

th

May, 2020. That the Plaintiff is likely to dispose off the suit land hence subjecting them to substantial loss unless the application is allowed.

4. The Plaintiff filed his grounds of opposition dated the 20

th

July, 2020 in answer to each of the three applications and replying affidavits of the Plaintiff sworn on same date. The grounds and affidavit evidence are summarized as follows;

(a) That the applications are incompetent, frivolous, lacks merit and should be struck out for failure to meet the threshold for granting of the orders sought.

(b) That granting the applications will prejudice the Plaintiff’s fundamental right to property and the Plaintiff should be allowed to enjoy the fruits of the judgment.

(c) That the Defendants have not come to Court in clean hands or good faith.

(d) That the applications should be dismissed with costs.

(e) That Michele Chebet Saina has no locus standi as she has not been substituted for 18

th

Defendant.

5. The learned counsel for the 11

th

to 14

th

and 16

th

Defendants filed their written submissions dated the 18

th

September, 2020 on the 22

nd

September, 2020 while that of the 13

th

and 18

th

Defendants filed theirs dated the 21

st

October, 2020. The learned Counsel for the Plaintiff filed one dated the 18

th

November, 2020 and two dated the 19

th

November, 2020.

6. The following are the issues for the Court’s determinations;

(a) Whether the Defendants/Applicant in each of the three applications have satisfied the threshold set under

Order 42 Rule 6 of the Civil

Procedure Rules

for the orders sought to be granted.

(b) Who pays the costs of each of the applications?

7. The court has carefully considered the legal provisions in each of the three applications, the grounds thereon, the affidavits evidence, the Learned Counsel’s submissions and come to the following conclusions;

(a) That the Motion dated and filed on 4

th

June, 2020 has cited

“

Order 22 Rule 2, Order 51 of the Civil Procedure Rules and Section 3(a) of the Civil Procedure Act

”

. That

Order 22 Rule 2 of the Civil Procedure Rules

provides for payment out court to decree-holder and do not appear to have any relevance to the prayer for stay of execution pending hearing and determination of the appeal. That

Civil Procedure Act Chapter 21 of Laws of Kenya

do not have any Section numbered as

3a

. That the Section in that Act that may appear similar is

Section 3A

that restates or saves the inherent powers of the court to do justice or to prevent abuse of the process of the court. That

Order 51 of the Civil Procedure Rules

provides for applications generally. That the guiding and relevant provisions for applications for stay pending appeal from decisions of this court to the Court of Appeal is

Order 42 Rule 6 of the Civil Procedure Rules

that sets the threshold for an applicant to satisfy to enable the Court exercise its discretion to their favour. That as the application is filed through Counsel, the Court expects the proper provisions of the law, under which the application is brought to be cited.

(b) That in respect of the application by 13

th

and 18

th

Defendant/Applicant dated 3

rd

June 2020, it is brought under

Order 42 Rule 6 of the Civil Procedure Rules

. That Michele Chebet Saina, reportedly the widow of the 18

th

Defendant, has not disputed the Plaintiff’s challenge that she has not applied to be substituted as the personal representative for the 18

th

Defendant in accordance with the law and hence lacks locus standi. That the said Michelle Chebet Saina appear to believe that she has the locus stand as she has a confirmed grant. That however, the learned Counsel for the Plaintiff submits that she does not have the locus standi as she has not complied with

Order 24 of the Civil Procedure Rules

on substitution of the 18

th

deceased Defendant. That as the proceedings are yet to be typed, this Court is unable to confirm whether that issue of her capacity was raised before the trial court and or determined.

(c) The Motion dated the 21

st

May, 2020 under Certificate of Urgency dated 13

th

May, 2020 and filed on 9

th

June, 2020 cites

Section 1A,1B, 3A and 79 G of the Civil Procedure Act

and

Order 42 Rule 6(1) and (2) (a) and Order 50 of the Civil Procedure Rules

. That

Order 50 of the Civil Procedure Rules

deals with provision on computation of time. That

Sections 1A, 1B and 79 G of the Civil Procedure Act

provides for objective of the Act, duty of the Court and time for filing appeals from the subordinate Courts.

(d) That

Order 42 Rule 6 of the Civil Procedure Rules

requires of an application seeking stay pending appeal order to satisfy the Court that substantial loss would result unless the order is allowed; that the application has been made without unreasonable delay and give security for the due performance of the decree or order as may be ordered by the court. That in all the three applications herein, there is no evidence tendered that goes to show the extent of the damage the respective defendants are likely to suffer if the applications are not granted. That in any case, the judgment delivered on the 6

th

May, 2020 clearly shows the prayer to have the sons of the Plaintiff, that is the 11

th

to 15

th

and 18

th

Defendants was declined, and there is no evidence tendered to suggest or show that the Plaintiff has set out to evict them, or is likely to evict them before the appeal is heard and determined.

(e) That even though the applications were filed without undue delay, and parties have expressed their readiness to comply with any terms the court may direct in granting the applications, the court finds in view of the finding in

(d)

above, the three applications have no merit and must fail.

(f) That the costs in the three applications to abide the outcome of the appeal.

7. That flowing from the foregoing, the Court finds no merit in the three notices of motion listed above and all are dismissed with costs to abide the outcome of the appeal. It is so ordered.

Delivered virtually and dated at Eldoret this 16

th

day of December, 2020.

S. M. KIBUNJA

JUDGE

In the presence of

:

Plaintiff: Absent.

Defendants: Absent.

Counsel: Mr. Nyandieka for the Plaintiff/Respondent.

Mr. Kipnyekwei for 2

nd

to 5

th

, 8

th

and 9

th

Defendants/Applicants and

Mr. Maina for 11

th

to 14

th

and 16

th

Defendants/Applicants.

Court Assistant: Christine

and the Ruling is to be transmitted digitally by the Deputy Registrar to the Counsel on record through their e-mail addresses.