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ELCPartially AllowedMotion dated 27th May, 2020 (arising from judgment and decree dated 13th May, 2020)· [2020] KEELC 1066 (KLR)

Rodgers Katami Wambia & 2 others v Rachel Odera & 2 others; Board of Management – Marula Primary School(Interested Party) [2020] KEELC 1066 (KLR)

Environment and Land Court
14 October 2020
1,562 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court paused execution of a land judgment because the losing parties risked losing their homes while their appeal was pending.

What this practically means

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Executive summary

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The 1st and 2nd Defendants moved the Environment and Land Court at Eldoret by notice of motion dated 27th May 2020 seeking stay of execution of the judgment and decree dated 13th May 2020 pending their intended appeal to the Court of Appeal (reportedly C.A.C.A. No. 20 of 2020). They claimed ownership of Kakamega/Lugari/183 as administrators and beneficiaries of the estate of the late Salome Muhonja Odera, the registered owner, and warned that execution would lead to their eviction and demolition of their structures, rendering any appeal nugatory. The Plaintiffs opposed, asserting that the suit property belongs to Lugari Yearly Meeting of Friends Church (Quakers), on which a church stands and parts are used for farmer training, leasing to Lake Basin Authority and Marula Primary School (the Interested Party). The 3rd Defendant and Interested Party filed grounds of opposition contending the application was defective and that the requirements for stay, including security, had not been met. The court framed two issues: whether the Order 42 Rule 6 requirements for stay were satisfied, and costs. It held the application was filed without unreasonable delay, that the risk of the defendants' homes being demolished and of their eviction pending appeal amounted to substantial loss, and that security of Kshs.200,000 in an interest-earning joint account of counsel would suffice. The court allowed the motion, granting stay on conditions restricting the defendants to the portion of land they occupied at judgment, prohibiting permanent alterations, and ordering that costs of the application abide the appeal.

Key legal issues

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01

Whether the 1st and 2nd Defendants satisfied the requirements of Order 42 Rule 6 for stay of execution pending appeal

Holding

The requirements were satisfied: the application was filed without unreasonable delay (filed on the fifteenth day from judgment), substantial loss was demonstrated through the risk of eviction and demolition of homes, and security was fixed at Kshs.200,000.

Reasoning

The judgment was delivered on 13th May 2020; a Notice of Appeal was filed on 19th May 2020 and the motion on 28th May 2020, being the fifteenth day, so there was no unreasonable delay. Execution of orders 12(b)(iv) and (v) would result in demolition of the defendants' houses and eviction, rendering them homeless while the appeal is pending in the Court of Appeal. Given their willingness to furnish security, a deposit of Kshs.200,000 in an interest-earning joint account would suffice, with activities restricted to the portion of land they used at judgment.

p. 2
02

Who pays the costs of the application

Holding

Costs of the application were ordered to abide the outcome of the appeal.

Reasoning

Noting that no party was granted costs in the judgment of 13th May 2020, and that the defendants had expressed willingness to furnish security, the court considered it appropriate that the costs of the application should await the outcome of the intended appeal rather than be awarded to any party immediately.

p. 2

Legal principles established

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  • An applicant for stay of execution pending appeal must show that the application was brought without unreasonable delay, that they stand to suffer substantial loss if stay is not granted, and must provide security as the Court orders.
  • The possibility of an applicant's home being demolished and the applicant rendered homeless by eviction while an appeal is pending constitutes substantial loss justifying stay.

Court orders

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  1. 1.Stay of execution of the judgment and decree dated 13th May, 2020 issued pending hearing and determination of the filed appeal
  2. 2.The 1st and 2nd Defendants' activities restricted to the portion of the suit property under their use as of the date of the judgment
  3. 3.The 1st and 2nd Defendants not to carry out any further developments or activities on the said portion of land that alters or is likely to alter it permanently
  4. 4.The 1st and 2nd Defendants to deposit Kshs.200,000 in an interest earning account with a financial institution in the joint names of the parties' Advocates within sixty (60) days, in default the stay order to automatically lapse
  5. 5.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 25
  • Constitution of Kenya, 2010Article 50
  • Environment and Land Court ActSection 16
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 51 Rule 1
Jurisdiction invoked
Articles 25 and 50 of the Constitution, 2010; Section 16 of the Environment and Land Court Act; Sections 1A, 1B and 3A of the Civil Procedure Act; Orders 42 Rule 6 and 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Rodgers Katami Wambia & 2 others v Rachel Odera & 2 others; Board of Management – Marula Primary School(Interested Party) [2020] KEELC 1066 (KLR)", Case Analysis (2020). Motion dated 27th May, 2020 (arising from judgment and decree dated 13th May, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1066/eng@2020-10-14

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