James Owuor Amolo v Peter Adongo Okongo & 2 others [2019] KEELC 477 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a stay of execution request because the applicant met only one of three required conditions.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was filed without unreasonable delay
The application was brought timeously, having been filed 16 days after the judgment of 20th March 2019
The court observed that judgment was rendered on 20th March 2019 and the application filed on the 16th day thereafter. While mindful of the equitable principle that delay defeats equity, and noting that Article 10(2)(b) of the Constitution anchors the application of principles of equity, the court held it was common ground that the application was brought timeously, satisfying this limb.
Whether the applicant demonstrated substantial loss
The applicant failed to demonstrate distinctly that he was likely to suffer substantial loss
Although the applicant asserted in his supporting affidavit that he might be evicted from the suit land and that his appeal would be rendered nugatory if the respondents were unable to refund the decree, the court, guided by the authorities on substantial loss, held that such loss must be considerable in amount or value and the applicant did not demonstrate it distinctly.
Whether the applicant offered security for the due performance of the decree
The applicant had not actually offered security, despite expressing willingness to do so
The applicant asserted that he was ready, able and willing to give security as the court might order, but the court noted that mere willingness is not enough. Adopting the respondents' contention and the Trust Bank authority, the court found the answer to whether security had been offered was not in the affirmative.
Legal principles established
#- The three prerequisites under Order 42 Rule 6(2) - substantial loss, absence of unreasonable delay, and security - are cumulative and must all be satisfied before stay of execution pending appeal may be granted
- Grant of stay of execution is not a matter of course and depends on genuine conditions, grounds, merit and dispatch
- Substantial loss must be considerable in amount or value and must be distinctly demonstrated by the applicant
Court orders
#- 1.The application dated 5th April, 2019 was disallowed with costs in the cause
- On appeal from
- null
- null
- Jurisdiction invoked
- Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and section 3A of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Owuor Amolo v Peter Adongo Okongo & 2 others [2019] KEELC 477 (KLR)", Case Analysis (2019). Notice of motion dated 5th April, 2019 arising from Migori ELCC No. 744 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/477/eng@2019-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.