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ELCAllowedSiaya PMC & E No. 126 of 2013 (Appeal) - Notice of Motion dated 13th March 2019· [2020] KEELC 2358 (KLR)

Benard Oduor Radier v Festo Owino Omollo & another [2020] KEELC 2358 (KLR)

Environment and Land Court
12 May 2020
AOA.O. OMBWAYO
1,379 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed you can ask the appeal court directly to pause execution of a judgment, without first applying to the lower court.

What this practically means

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Executive summary

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The Appellant, Benard Oduor Radier, moved the Environment and Land Court at Kisumu by Notice of Motion dated 13th March 2019 seeking stay of execution of the judgment and decree of Hon TM Olando (SRM) delivered on 23rd January 2019 in Siaya PMC & E No. 126 of 2013, a land case in which he had sought nullification of parcels SIAYA/NYANDIWA/3818 and 3819 as fraudulent subdivisions of ancestral land. He contended he had an arguable appeal, that the 1st Respondent was scouting for buyers of the suit land, and that the appeal would be rendered nugatory without a stay. The 1st Respondent filed a preliminary objection contending the court lacked jurisdiction to entertain the application, arguing that under Order 42 Rules 6 and 3 such an application must be made before the court that issued the decree, and that the application was filed about 50 days after judgment, beyond the statutory period. The court framed two issues: its jurisdiction and whether stay should be granted. Relying on Order 42 Rule 6 (1) and the decision in Patrick Kalava Kulamba, the court held that once an appeal is lodged it may entertain a stay application afresh, whether or not one was first made in the lower court. On the merits, the court found no inordinate delay, an offer of security, an arguable appeal, and an unrebuted risk of disposal of the land. The stay was granted on condition that the Appellant furnishes security of Ksh 100,000 for the performance of the decree. The judgment was delivered electronically pursuant to COVID-19 directions.

Key legal issues

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01

Whether the court has jurisdiction to entertain the stay application

Holding

The court, as the appellate court, is properly clothed with jurisdiction under Order 42 Rule 6 (1) to hear the stay application irrespective of whether a similar application was made in the lower court.

Reasoning

Order 42 Rule 6 (1) allows the court to which an appeal is preferred to consider a stay application afresh, whether or not the lower court has already granted or refused one. The court adopted Meoli, J's reasoning that the appellate court in that capacity exercises original jurisdiction over the stay application.

p. 2
02

Whether stay of execution should be granted

Holding

Stay granted: the application was made without unreasonable delay, the appellant was willing to furnish security, the appeal was arguable, and unexplained plans to dispose of the suit land pointed to substantial loss.

Reasoning

The court applied the Order 42 Rule 6 (2) conditions. The roughly 50-day delay was not inordinate; security was offered; the memorandum of appeal raised convincing arguable issues; and the 1st Respondent did not deny allegations of planning to dispose of the land, meaning the appeal could be rendered nugatory.

p. 2

Legal principles established

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  • Where an appeal has been lodged against the orders of the lower court, an application for stay of execution may be made directly to the appellate court without a similar application first having been made in the court appealed from.

Court orders

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  1. 1.Stay of execution of the judgment and decree delivered on 23rd January 2019 in Siaya PMC & E No. 126 of 2013 pending appeal is granted
  2. 2.The Appellant to furnish security of the value of Ksh 100,000 for the performance of the decree

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6 (1)
  • Civil Procedure RulesOrder 42 Rule 6 (2)
  • Civil Procedure RulesOrder 42 Rule 3
  • Civil Procedure RulesOrder 40 Rule 1 (a) and (b)

Cases cited (2)

  • Robert Mugo Wa Karanja v Ecobank (Kenya) Limited
    [2019] eKLR
  • Patrick Kalava Kulamba & another v Philip Kamosu and Roda Ndanu Philip (Suing as the Legal Representative of the Estate of Jackline Ndinda Philip (Deceased)
    [2016] eKLR
On appeal from
Siaya Principal Magistrate's Court
Siaya PMC & E No. 126 of 2013
Jurisdiction invoked
Order 42 Rule 6 (1) 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, "Benard Oduor Radier v Festo Owino Omollo & another [2020] KEELC 2358 (KLR)", Case Analysis (2020). Siaya PMC & E No. 126 of 2013 (Appeal) - Notice of Motion dated 13th March 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2358/eng@2020-05-12

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