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ELCOtherNot stated in the excerpt (suit filed 1st March 2011; ruling on Notice of Motion dated 25th May 2016)· [2016] KEELC 181 (KLR)

Joyce Irene Atieno Okeyo v Michael George Okeyo & 4 others [2016] KEELC 181 (KLR)

Environment and Land Court
4 November 2016
SOS. Okong'o
2,362 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court granted a woman facing eviction temporary relief, but only after a long delay and on strict financial conditions she must meet within 30 days.

What this practically means

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Executive summary

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This ruling by Okong'o J of the Environment and Land Court at Nairobi, delivered on 4th November 2016, deals with the Plaintiff's application for stay of execution of the court's summary judgment of 29th January 2016, in which the Plaintiff had been ordered to vacate and hand over possession of LR. No. Nairobi/Block 72/700, Onyonka Langata, to the 3rd defendant within sixty days. The suit arose from the Plaintiff's claim that her husband, the 1st defendant, fraudulently transferred the matrimonial home to the 2nd defendant and thence to the 3rd defendant to defeat her rights; the 3rd defendant counter-claimed as a bona fide purchaser for Kshs.8,500,000/= and sought vacant possession and mesne profits. Considering Order 42 Rule 6 of the Civil Procedure Rules, the court found substantial loss was shown since the decree was for possession of property the Plaintiff occupied and she risked eviction before her intended appeal. However, the application was filed after an unexplained delay of over seven months, and the Plaintiff had for over three years failed to comply with Nyamweya J.'s order of 23rd October 2013 to deposit Kshs.1,000,000/= as security for costs. Balancing the Plaintiff's undoubted right of appeal against the 3rd defendant's continuing losses on a bank-financed purchase she had never possessed, the court conditionally stayed the judgment for eight months, on condition that the Plaintiff deposit Kshs.2,000,000/= in court within thirty days, failing which the stay would discharge automatically and warrants for forceful eviction would issue. Costs were made costs in the cause.

Key legal issues

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01

Substantial loss

Holding

The Plaintiff demonstrated substantial loss since the decree is for possession of the property she occupies and she risks eviction before her appeal is heard

Reasoning

The decree sought to be stayed directed the Plaintiff to vacate and hand over possession of the suit property. If executed before the intended appeal is determined, she would be evicted, rendering the appeal nugatory. The court found this sufficient to establish the substantial-loss threshold under Order 42 Rule 6(2).

p. 3
02

Unreasonable delay and security

Holding

The application was brought over 7 months after the judgment without explanation, and the Plaintiff had never complied with an earlier order for security for costs; the stay was therefore granted conditionally

Reasoning

The court found the delay of over seven months unexplained. The Plaintiff also failed for over three years to comply with Nyamweya J.'s order of 23rd October 2013 to deposit Kshs.1,000,000/= as security for costs, indicating she was unlikely to furnish security. Balancing her undoubted right of appeal against the 3rd defendant's continuing losses, the court granted a time-limited stay conditional on deposit of Kshs.2,000,000/=, with automatic discharge on default.

p. 4

Legal principles established

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  • An order for stay of execution pending appeal requires satisfaction that substantial loss will ensue, that the application was made without unreasonable delay, and that security for due performance of the decree will be furnished
  • A court may grant a stay conditionally despite inordinate delay, where justice demands that the decree-holder be secured against losses

Court orders

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  1. 1.The order of the court made on 29th January 2016 is stayed for a period of eight (8) months to enable the Plaintiff file and prosecute the intended appeal to the Court of Appeal
  2. 2.Stay granted on condition that the Plaintiff deposits in court within thirty (30) days the sum of Kshs.1,000,000/= as security for costs (per Nyamweya J.'s order of 23rd October 2013) and a further Kshs.1,000,000/= as security for due performance of the decree, totalling Kshs.2,000,000/=
  3. 3.In default of compliance with the conditions, the stay shall stand discharged automatically and the 3rd defendant shall be at liberty to execute the decree; the Deputy Registrar shall issue warrants for the Plaintiff's forceful eviction without further reference to the court
  4. 4.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6(2)
Jurisdiction invoked
Order 42 Rule 6(1) and 6(2) of the Civil Procedure Rules (power to stay execution of a decree pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joyce Irene Atieno Okeyo v Michael George Okeyo & 4 others [2016] KEELC 181 (KLR)", Case Analysis (2016). Not stated in the excerpt (suit filed 1st March 2011; ruling on Notice of Motion dated 25th May 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/181/eng@2016-11-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.