Lydia Awuor Jacka & 3 others v Concepta Masipwoni Jacka & another [2019] KEELC 1889 (KLR)
The bottom line
#A Kenyan court paused enforcement of a land judgment because the losing family still lives there with homes, protecting them until their appeal is heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for stay of execution pending appeal satisfied the criteria in Order 42 rule 6
The application was allowed; the court found the appeal arguable, that the Applicants live on the land with their homes, and that eviction before the appeal could cause clear and foreseeable loss, so stay was necessary to maintain the status quo
The court noted the twin tests of an arguable appeal and whether the appeal would be rendered nugatory, but stressed that stay remains a discretionary exercise considering all circumstances. The Applicants live on the land claimed by the Respondents and their homes are there; eviction or demolition before the appeal is heard would produce clear and foreseeable loss. An ex parte stay had already been granted with the intended appeal in mind, and the appeal had since been filed and was arguable.
Whether the Applicants demonstrated substantial loss
Yes - the risk of eviction and demolition of their homes on the suit land constituted clear and foreseeable loss
The Respondents argued that the Applicants had merely alleged irreparable loss without demonstrating it and had not offered security. The court nonetheless found that the Applicants evidently live on the land, have appealed, and that eviction before the determination of the appeal would result in clear and foreseeable loss, asking rhetorically what would happen if the homes were demolished. This satisfied the court that substantial loss was demonstrated.
Legal principles established
#- The grant of stay of execution pending appeal is a matter of judicial discretion to be exercised on consideration of all material circumstances, not only the interest of one party
- The overarching consideration in applications for stay is the interests of justice, requiring flexibility and rigorous appreciation of prevailing circumstances
Court orders
#- 1.An order of stay of execution of the decree dated 13/11/2018 pending the hearing and final determination of the Applicants' appeal
- 2.No order as to costs
- Jurisdiction invoked
- Order 42 rule 6(1, 2 and 5) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act (cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lydia Awuor Jacka & 3 others v Concepta Masipwoni Jacka & another [2019] KEELC 1889 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1889/eng@2019-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.