Wuodgot Odhiambo Migot v Jemima Akinyi Oyare [2020] KEELC 3223 (KLR)

Environment and Land Court

25 February 2020

AOA.O. Ombwayo

373 words in judgment

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The bottom line

A Kenyan court granted a stay of execution only on condition the appellant deposit the decretal amount in court within 30 days.

What this practically means

Executive summary

The appellant, Wuodgot Odhiambo Migot (also known as Daudi Odhiambo Migot), moved the Environment and Land Court by application seeking stay of the orders made on 21/8/2019 together with the itemed bill of costs dated 22/1/2020, pending the hearing and determination of his appeal. He argued that he would suffer prejudice if the orders were not stayed, that the appeal had high chances of success, and that without a stay the appeal would be rendered nugatory. The respondent, in response, stated that the decretal amount was then Kshs. 112,800 and proposed that the amount be deposited in court. The court applied Order 42 Rule 6(2)(a) and (b) of the Civil Procedure Rules, which requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and that security for due performance of the decree has been given. On delay, judgment had been entered on 4/12/2019 and the application filed on 3/2/2020 - about 58 days, or approximately 40 days after excluding Christmas vacation - which the court found to be inordinate delay. On substantial loss, the court held that the appellant had not demonstrated that paying the decretal sum would cause him loss, the burden being on him to show the respondent could not refund the money if the appeal succeeded. Nonetheless, in the interest of justice, the court allowed the application on condition that the appellant deposit Ksh 112,800 and the taxed costs in court within 30 days of taxation, with taxation proceeding as scheduled. Costs of the application were awarded in the appeal.

Key legal issues

Whether there was unreasonable delay in filing the application for stay

Holding

A delay of approximately 40 days after excluding Christmas vacation was inordinate

Reasoning

Judgment was entered on 4/12/2019 and the application filed on 3/2/2020, about 58 days later. Even after excluding 15 days of Christmas vacation, a delay of approximately 40 days remained, which the court found inordinate in the circumstances.

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Whether the appellant demonstrated substantial loss

Holding

The appellant failed to demonstrate substantial loss

Reasoning

The appellant did not show that paying the decretal sum would cause substantial loss. The burden lay on the appellant to show that the respondent would be unable to refund the money should the appeal succeed, which was not discharged.

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Whether stay should issue subject to security

Holding

Stay granted conditionally on deposit of the decretal amount and taxed costs

Reasoning

In the interest of justice the court allowed the application with a rider that the appellant deposit Ksh 112,800 and the taxed costs in court within 30 days of taxation, with taxation to proceed as scheduled, thereby securing the decree's due performance.

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Legal principles established

An applicant for stay must satisfy the conditions of substantial loss, absence of unreasonable delay and giving of security under Order 42 Rule 6(2) of the Civil Procedure Rules
It is the applicant's burden to demonstrate that the respondent will not be able to refund the decretal sum if the appeal succeeds

Court orders

1.Stay of the orders made on 21/8/2019 and the itemed Bill of costs dated 22/1/2020 granted pending the hearing and determination of the appeal, on condition that the appellant deposits Ksh 112,800 and the taxed costs in court within 30 days of taxation
2.Taxation to proceed as scheduled
3.Costs of the application in the appeal

Authorities

Legislation

Civil Procedure RulesOrder 42 Rule 6(2)(a),(b)

On appeal from: Not stated (subordinate court implied by appeal and taxed bill of costs)
Jurisdiction invoked: Order 42 Rule 6(2)(a),(b) of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Wuodgot Odhiambo Migot v Jemima Akinyi Oyare [2020] KEELC 3223 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3223/eng@2020-02-25

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