Evance Otieno Oloo Gor, Micheal Kojo Otieno & Walter Okelo Opiyo v Fund Manager Ngaaf Homa-Bay County , Homa-Bay County Women Representative & M/S Pacific General Works Ltd (Environment and Land Appeal 34 of 2020) [2020] KEELC 127 (KLR)
The bottom line
#The Environment and Land Court in Migori granted a stay of a magistrate's land ruling pending appeal, but only on condition the appellants file their appeal record within 45 days.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant stay pending appeal in an ELC appeal
The court holds that it has authority both at common law/inherent jurisdiction and under section 13(7)(a) of the Environment and Land Court Act to issue interim preservation and stay orders pending appeal.
The court invoked the Supreme Court decision in Board of Governors Moi High School Kabarak v Malcolm Bell for the power to preserve the subject matter of an appeal, and supplemented it with the statutory mandate in section 13(7)(a) of the ELC Act. It found that a stay order is not precluded by that provision. The motion was unopposed, served, and described as hinged on a solid foundation and full of merits.
Effect of non-response by duly served respondents
Service having been effected and the respondents having declined to respond, the unchallenged motion could be allowed.
Relying on Ogada v Mollin, the court noted respondents have the right to appear or decline to appear. Service was proved by an affidavit of service sworn on 14th December 2020. The motion was therefore treated as unchallenged and meritorious, justifying the grant of stay on terms, including a timeline to compile the record of appeal under Article 159(2)(b).
Legal principles established
#- A court seized of an appeal may issue orders for the interim preservation of the subject matter of the appeal
- The ELC has statutory mandate to issue preservation orders, and an order of stay is not precluded thereby
- A respondent to a motion has the right to appear or decline to appear once duly served
Court orders
#- 1.Stay of the ruling of Honourable A.T. Obutu (SPM) delivered on 26/8/2020 in Chief Magistrate's Court ELC Case No. 40 of 2020 granted, the appeal having been admitted
- 2.Costs be in the cause
- 3.Appellants to file and serve a complete record of appeal within forty-five (45) days, failing which the order of stay shall lapse forthwith
- 4.Deputy Registrar to call for the original record of the trial court urgently
- 5.Mention to confirm compliance and for directions on 17th March 2021
- On appeal from
- Chief Magistrate's Court
- ELC Case No. 40 of 2020
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21), Order 40 Rule 7 and Order 42 Rule 6 of the Civil Procedure Rules, 2010; section 13(7)(a) of the Environment and Land Court Act; Article 159(2)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evance Otieno Oloo Gor, Micheal Kojo Otieno & Walter Okelo Opiyo v Fund Manager Ngaaf Homa-Bay County , Homa-Bay County Women Representative & M/S Pacific General Works Ltd (Environment and Land Appeal 34 of 2020) [2020] KEELC 127 (KLR)", Case Analysis (2020). ELC Appeal — Notice of motion dated 15th September 2020 (arising from Chief Magistrate's Court ELC Case No. 40 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/127/eng@2020-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.