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ELCDismissedNot stated in the judgment· [2020] KEELC 3981 (KLR)

Patrick J. O. Otieno v Lake Victoria South Water Services Board [2020] KEELC 3981 (KLR)

Environment and Land Court of Kenya
9 November 2020
2,352 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Migori (G.M.A. Ongondo, J) determined a Notice of Motion dated 18th August 2020 by Lake Victoria South Water Services Board seeking stay of execution of the judgment of 28th July 2020, which had been entered in favour of Patrick J. O Otieno, including an award of damages and an environmental restoration order in respect of Title number Kanyamkago/Kawere II/1224, pending an intended appeal. The applicant relied on Order 42 Rules 6 and 7 and offered a bank guarantee for one third of the decretal sum, contending it could not raise the adjudged sum or restore the land, and that the appeal would be rendered nugatory. The respondent opposed, contending the conditions in Order 42 Rule 6(2) were unmet, no substantial loss was disclosed, and a stay would prejudice environmental restoration for present and future generations. The court found the application filed within reasonable time (21 days after judgment) but held that all three conditions under Order 42 Rule 6(2) are cumulative. The applicant failed to demonstrate substantial loss with evidence and failed to provide the security required, a statutory body not being exempt. Further, the earlier stay granted on 28th July 2020 had lapsed, and a fresh stay would offend Article 159(2)(b) and (e) and amount to an abuse of process. The application was dismissed with costs to the applicant under the proviso to section 27(1) of the Civil Procedure Act.

Key legal issues

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01

Unreasonable delay

Holding

The application, filed 21 days after judgment, was made without unreasonable delay

Reasoning

Judgment was delivered on 28th July 2020 and the application lodged on 18th August 2020, the 21st day. The court found this comparable to the four-week delay considered acceptable in Philip Chemwolo v Augustine Kubende, and the respondent himself conceded the application was made without unreasonable delay. The delay condition was therefore satisfied.

p. 2
02

Substantial loss

Holding

The applicant failed to demonstrate substantial loss; bare and speculative allegations do not suffice

Reasoning

Although the applicant asserted its property risked being auctioned and its operations crippled, no evidence or particulars of the loss were disclosed. The court relied on Mukoma v Abuoga and New Stanley Hotel Ltd v Arcade Tobacconist, holding that an applicant must demonstrate to the court's satisfaction the substantial loss it would suffer in the absence of a stay.

p. 3
03

Security for due performance of the decree

Holding

The offer of a bank guarantee for one third of the decretal sum did not amount to the security required under Order 42 Rule 6(2)

Reasoning

The court noted the constitutional definition of 'guarantee' under Article 260 and Black's Law Dictionary, and relied on Doshi Iron Mongers Ltd v Kenya Revenue Authority holding statutory bodies are not exempt from providing security. The applicant had not provided security as commanded by Order 42 Rule 6(2), failing the third cumulative condition.

p. 3
04

Exercise of discretion and lapse of earlier stay

Holding

The discretion to grant stay cannot be exercised to render the appeal nugatory or to defeat a vested right to a judgment; the lapsed stay would not be renewed

Reasoning

Guided by National Industrial Credit Bank, Butt and Kenya Shell, the court held the discretion must not prevent the appeal from being effectual, and a party has a vested right to its judgment. Since the stay granted on 28th July 2020 had lapsed, a further stay would amount to an abuse of process offending Article 159(2)(b) and (e).

p. 3

Legal principles established

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  • All three conditions in Order 42 Rule 6(2) for stay of execution pending appeal are cumulative and must all be satisfied
  • A mere assertion of substantial loss without evidence is insufficient; stay orders sought in a vacuum will not issue
  • A statutory body is not exempt from providing security for the due performance of a decree

Court orders

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  1. 1.The Notice of Motion dated 18th August 2020 is disallowed (dismissed)
  2. 2.Costs of the application to be borne by the applicant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rules 6 and 7
  • Civil Procedure Rules, 2010Order 51 Rules 1 and 8
  • Civil Procedure ActSections 3, 3A, 27(1) and 94
  • Constitution of KenyaArticle 159(2)(a), (b) and (e); Article 260
  • Environment and Land Court ActSection 18(a)(vi), (b), (c), (d) and (e)

Cases cited (15)

  • James Wangalwa and another v Agnes Naliaka Cheseto
    (2012) eKLR
  • National Industrial Credit Bank Ltd vs Aquinas Francis Wasike and another
    (2006) eKLR
  • Focin Motorcycle Co. Ltd vs Ann Wambui Wangui and another
    (2018) eKLR
  • RWW vs EKW
    (2019) eKLR
  • Butt vs Rent Restriction Tribunal
    (1982) KLR 417
  • Kenya Shell Ltd v Kibiru
    (1986) KLR 410
  • Philip Chemwolo and anothers v Augustine Kubende
    (1982-88) KAR 103
  • Blue Shield Insurance Co. Ltd
    (2009) KLR 551
  • Mukoma vs Abuoga
    (1988) KLR 645
  • New Stanley Hotel Ltd vs Arcade Tobacconist Ltd
    (1980) KLR 757
  • Doshi Iron Mongers Ltd vs Kenya Revenue Authority and another
    (2020) eKLR
  • Valji Shahmad vs Shamji Bros and Popatial Karman and Company Ltd
    (1957) EA 438
  • Mbuthia Macharia v Anna Mutua Ndwiga and another
    (2017) eKLR
  • Board of Governors, Moi High School, Kabarak and another vs Malcolm Bell
    (2013) eKLR
  • Trust Bank Ltd vs Ajay Shah and 3 others
    (2012) eKLR
Jurisdiction invoked
Order 42 Rules 6 and 7 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; sections 3 and 3A of the Civil Procedure Act

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, "Patrick J. O. Otieno v Lake Victoria South Water Services Board [2020] KEELC 3981 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3981/eng@2020-11-09

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