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ELCPartially AllowedNot stated in the excerpt (Notice of Motion dated 27th December 2019, following judgment delivered 3rd December 2019)· [2020] KEELC 1478 (KLR)

Geoffrey Sure Ogada(Suing as the administrator of the estate of Joshua Ogada Ogonda (Deceased) v Reuben Otieno Disi & 3 others [2020] KEELC 1478 (KLR)

Environment and Land Court
22 July 2020
1,582 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan land court paused execution of a judgment, but the losing party must quickly file their appeal and pay Ksh 100,000 security or the pause ends.

What this practically means

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Executive summary

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By a Notice of Motion dated 27th December 2019 filed under Order 42 Rule 6 and Order 22 Rule 25 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, the 1st and 2nd defendants, appearing in person, sought a stay of execution of the court's judgment delivered on 3rd December 2019 pending an intended appeal to the Court of Appeal, together with lifting of the decree and costs in the cause. They contended the judgment unjustly vested suit land from the mother parcel LR No. Kanyamkago Kawere I/697 on the plaintiff who had not followed the laid-down acquisition procedure, and that execution would render the appeal nugatory. The plaintiff, through Ndeda and Associates Advocates, opposed the application as non-compliant with Order 42 Rule 6 and designed to deny him the fruits of his judgment. The court adopted the three conditions in Order 42 Rule 6: substantial loss, absence of unreasonable delay, and security for due performance. It found the applicants likely to suffer substantial loss since the decree issued on 3rd January 2020 could be executed against them; that the application, filed on 30th December 2019, was brought without unreasonable delay; and that, the Order 42 Rule 6 conditions being cumulative (as held in Trust Bank Ltd v Ajay Shah), the applicants met the threshold. Relying also on the Supreme Court's decision in Board of Governors, Moi High School, Kabarak v Malcom Bell and Section 13(7)(a) of the Environment and Land Court Act, the court allowed the application, conditioned the stay on the filing of a complete record of appeal within 45 days and the deposit of security of Kshs 100,000/= within 45 days, ordered costs of the application to abide the intended appeal, and directed that the stay orders lapse upon default. The judgment was delivered electronically at Migori on 22nd July 2020 due to the COVID-19 pandemic.

Key legal issues

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01

Substantial loss

Holding

The applicants demonstrated likely substantial loss as the decree could be executed against them, rendering the intended appeal nugatory

Reasoning

The court noted that the decree was issued on 3rd January 2020 and nothing barred the respondent from executing it against the applicants. Given the nature and circumstances of the land matter, execution could render the intended appeal nugatory. The applicants relied on green cards for the mother parcel LR No. Kanyamkago Kawere I/697 and resultant subdivisions, contending the judgment vested the suit land on the respondent who did not follow the laid-down acquisition procedure.

p. 2
02

Unreasonable delay

Holding

The application was brought without unreasonable delay, judgment having been rendered on 3rd December 2019 and the application initiated on 30th December 2019

Reasoning

The court applied Order 51 Rule 8 of the Civil Procedure Rules and Section 57 of the Interpretation and General Provisions Act on computation of days. It held that the interval between judgment and application was not unreasonable, invoking Article 10(2)(b) of the Constitution on equity and the maxim that delay defeats equity.

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03

Security for due performance of the decree

Holding

The applicants met the cumulative threshold in Order 42 Rule 6; security was fixed at Ksh 100,000/= to be deposited in court

Reasoning

The court observed that the applicants craved the convenience of the court regarding security while the respondent deposed that none had been offered. Relying on Trust Bank Ltd v Ajay Shah, it held the Order 42 Rule 6 conditions are cumulative and must all be satisfied, and found the applicants had met the threshold, granting security in the sum of Kshs 100,000/= with a 45-day compliance period.

p. 2

Legal principles established

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  • The conditions in Order 42 Rule 6 for a stay of execution are cumulative and must all be satisfied
  • A successful litigant is entitled to the fruits of his judgment, and stay of execution is a discretionary power to be exercised so as not to prevent an appeal, upon genuine conditions and dispatch
  • Delay defeats equity; the principle is anchored in Article 10(2)(b) of the Constitution

Court orders

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  1. 1.Stay of execution of the court's judgment issued on 3rd December 2019 pending the determination of the intended appeal (application allowed in terms of prayers (2) and (3))
  2. 2.The applicants to file and serve a complete record of appeal at the Court of Appeal within 45 days from the date of the order
  3. 3.The applicants to give security for the due performance of the decree in the sum of Ksh 100,000/= to be deposited in court within 45 days from the date of the order
  4. 4.The costs of the application to abide the intended appeal
  5. 5.Failure to comply with orders (a) and (b), the stay orders granted to lapse accordingly

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6; Order 22 Rule 25; Order 51 Rule 16; Order 51 Rule 8
  • Civil Procedure Act (Cap 21 Laws of Kenya)Sections 1A, 1B, 3, 3A
  • Registered Land Act Chapter 300 Laws of Kenya (Repealed)Sections 103(1) and (2)
  • Land Control Act Chapter 302 Laws of KenyaSection 6(1)
  • Interpretation and General Provisions Act Chapter 2 Laws of KenyaSection 57
  • Constitution of Kenya, 2010Articles 10(2)(b), 159(2)(b) and (d), 7(3)(b)
  • Environment and Land Court ActSection 13(7)(a); Sections 3 and 19
  • Environment and Land Court Practice Directions 2014Practice Direction Number 33 (a) and (b)

Cases cited (8)

  • Macharia Mwangi Maina and 37 others –vs- Davidson Mwangi Kagiri
    (2014) eKLR
  • Silverstein –vs- Chesoni
    (2002) 1 KLR 867
  • Independent Electoral and Boundaries Commission and another –vs- Stephen Mutinda Mule and 3 others
    (2014) eKLR
  • Butt –vs- Rent Restriction Tribunal
    (1982) KLR 417
  • Republic v Kasamani t/a Kasamani and company Advocates
    (2005) 2 KLR 297
  • Malindi Law Society of Kenya –vs- Law Society of Kenya Nairobi Branch and 5 others
    Civil Application number 20 of 2017 (2017) eKLR
  • Board of Governors, Moi High School, Kabarak and another v Malcom Bell
    Applications numbers 12 and 13 (2013) eKLR
  • Trust Bank Ltd v Ajay Shah and 3 others
    (2012) eKLR
Jurisdiction invoked
Order 42 Rule 6 and Order 22 Rule 25 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21); Section 13(7)(a) of the Environment and Land Court Act, 2015

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, "Geoffrey Sure Ogada(Suing as the administrator of the estate of Joshua Ogada Ogonda (Deceased) v Reuben Otieno Disi & 3 others [2020] KEELC 1478 (KLR)", Case Analysis (2020). Not stated in the excerpt (Notice of Motion dated 27th December 2019, following judgment delivered 3rd December 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1478/eng@2020-07-22

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