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ELCDismissedNot stated in the excerpt (application dated 21st May 2019; subject matter Butere PMC ELC No. 2 of 2019)· [2019] KEELC 1678 (KLR)

Joshua Alukaka Okeno & 5 others v Clifton Ayieta Okeno & another [2019] KEELC 1678 (KLR)

Environment and Land Court (or High Court) at Kakamega
26 September 2019
NMN.A. Matheka
2,031 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kakamega court refused to pause execution of a land judgment because the applicants showed no real loss, delayed, and failed to prove their appeal was worth hearing.

What this practically means

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Executive summary

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The applicants, appellants in an appeal against an order dated 23rd May 2019 delivered in Butere PMC ELC No. 2 of 2019, moved the court by notice of motion dated 21st May 2019 under Sections 1A, 1B, 3, 3A, 18, 63(e), 75(1)(h) and 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. They sought urgent certification, transfer and consolidation of the Butere suit into the present matter, and a stay of execution of the 23rd May 2019 order pending the appeal, contending they had occupied the suit lands for over twelve years, that the respondents intended to execute the order and render the appeal nugatory, and that the appeal had high chances of success. The 1st respondent opposed, asserting that the respondents had extensively developed, fenced and occupied the land having obtained title through succession, that the applicants resided on other portions, and that the application was made in bad faith. The court set out the Order 42 Rule 6 conditions - substantial loss, no unreasonable delay, and security - and the twin nugatory and arguability principles from the Reliance Bank, Chris Munga, Mohamed Salim and Carter & Sons authorities. Noting that the trial court had found the respondents to be the registered owners through succession, which the applicants had never challenged, the court found neither limb of the test satisfied, held the application to have no merit, and dismissed it with costs on 26th September 2019.

Key legal issues

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01

Whether the applicants demonstrated substantial loss to justify a stay

Holding

No - the trial court had found the respondents to be the registered owners through succession, and the applicants had not challenged those succession proceedings

Reasoning

The court examined the ruling from Butere PMC ELC No. 2 of 2019, which found the respondents were registered owners having obtained the parcels through succession. The applicants never challenged the succession proceedings, so no substantial loss capable of justifying a stay was demonstrated.

p. 3
02

Whether the appeal was arguable and would be rendered nugatory

Holding

No - the court was not persuaded on either limb of the established test

Reasoning

Applying the twin principles from Reliance Bank Ltd vs Norlake Investments and Chris Munga N. Bichange vs Richard Nyagaka Tongi, the court found the intended appeal not shown to be arguable and the refusal of stay not such as to render the appeal nugatory. Both limbs failed, so the discretion to grant a stay was not enlivened.

p. 3

Legal principles established

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  • An applicant for stay of execution must demonstrate substantial loss, that the application was made without unreasonable delay, and furnish security as ordered
  • The applicant must show an arguable appeal and that the appeal, if successful, would be rendered nugatory without the stay; both limbs must be demonstrated

Court orders

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  1. 1.The application dated 21st May 2019 for stay of execution of the order dated 23rd May 2019 was dismissed

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 18, 63(e), 75(1)(h), 79G
  • Civil Procedure RulesOrder 42 Rule 6 (sub-rules 1 and 2)

Cases cited (4)

  • Reliance Bank Ltd (In Liquidation) vs. Norlake Investments Ltd
    Civil Appl. No. Nai. 93/02 (UR)
  • Chris Munga N. Bichange Vs Richard Nyagaka Tongi & 2 Others
    eKLR
  • Mohamed Salim T/A Choice Butchery Vs Nasserpuria Memon Jamat
    (2013) eKLR
  • Carter & Sons Ltd vs Deposit Protection Fund Board & 2 Others
    Civil Appeal No. 291 of 1997
On appeal from
Butere Principal Magistrate's Court (ELC No. 2 of 2019)
Butere PMC ELC No. 2 of 2019
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 18, 63(e), 75(1)(h) and 79G of the Civil Procedure Act; Order 42 Rule 6 of the Civil Procedure Rules

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, "Joshua Alukaka Okeno & 5 others v Clifton Ayieta Okeno & another [2019] KEELC 1678 (KLR)", Case Analysis (2019). Not stated in the excerpt (application dated 21st May 2019; subject matter Butere PMC ELC No. 2 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1678/eng@2019-09-26

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