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ELCAllowedMaseno PM ELC Appeal (Environment and Land Court at Kisumu), arising from Maseno PM ELC Suit No. 23 of 2018· [2021] KEELC 7 (KLR)

Joshua Ouma & 2 others v Hezekiah Ong’undi Okumu [2021] KEELC 7 (KLR)

Environment and Land Court
1 October 2021
1,152 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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Joshua Ouma, James Otieno, Caren Omware and Samson Guya (appellants) appealed to the Environment and Land Court at Kisumu against the judgment of Hon. C.L. Yalwala, Principal Magistrate at Maseno, delivered on 22/5/2020 in Maseno PM ELC Suit No. 23 of 2018, which upheld Hezekiah Ongu'ndi's (respondent's) claim over parcel Kisumu/Karateng/839 with costs and dismissed the appellants' counterclaim. Alongside the appeal, the appellants applied for leave for Gordon Ogola, Kipkoech & Co. Advocates to come on record, and for stay of execution of the judgment and decree pending appeal, contending they faced eviction from land they had occupied for over 40 years and that the appeal would be rendered nugatory. The respondent opposed, arguing the application filed on 16th June 2020 was made after almost a month's delay, that no memorandum of appeal was annexed, that the trial court lacked jurisdiction over adverse possession claims under Section 38 of the Limitation of Actions Act, and that the appellants had neither demonstrated substantial loss nor offered security under Order 42 Rule 6 of the Civil Procedure Rules. Antony Ombwayo J granted leave to the advocates to come on record. Applying Order 42 Rule 6(2), he held that the delay was not unreasonable given the peak of the COVID-19 pandemic, and that the appellants would suffer substantial loss as they were likely to be evicted if stay was denied. He granted stay of execution pending appeal on condition that the appellants deposit in court security for costs of Kshs. 150,000/-. Costs were awarded in the appeal. The ruling was delivered electronically on 1st October 2021 pursuant to COVID-19 directions issued by the Chief Justice on 15th March 2020.

Key legal issues

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01

Whether the application was made without unreasonable delay

Holding

The delay from judgment on 22/5/2020 to application on 16th June 2020 was not unreasonable given the COVID-19 pandemic.

Reasoning

The court noted judgment was delivered on 22/5/2020 and the application filed on 16th June 2020. Though the respondent argued the near one-month delay was unreasonable, the court took judicial consideration of the prevailing COVID-19 pandemic conditions at the time of the events and concluded the delay did not disqualify the application.

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02

Whether substantial loss would result to the applicants absent a stay

Holding

Substantial loss was established because the appellants faced imminent eviction from the suit parcel if stay was not granted.

Reasoning

The respondent obtained judgment ordering the appellants to vacate parcel Kisumu/Karateng/839 and hand over possession failing which eviction would issue. The court found that without a stay the appellants would be evicted, satisfying the substantial loss requirement of Order 42 Rule 6(2)(a).

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03

Security for due performance of the decree

Holding

Stay was granted on condition the appellants deposit security for costs of Kshs. 150,000/- in court.

Reasoning

Order 42 Rule 6(2)(b) requires that such security as the court orders be given by the applicant. The court exercised its discretion to fix security at Kshs. 150,000/- to be deposited in court as a condition for the stay pending appeal.

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Legal principles established

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  • Delay in filing a stay application is assessed contextually; delay occurring during the COVID-19 pandemic peak is not unreasonable.
  • Where an applicant under Order 42 Rule 6(2) is likely to be evicted if stay is not granted, substantial loss is demonstrated.

Court orders

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  1. 1.Leave granted to the firm of Gordon Ogola, Kipkoech & Co. Advocates to come on record for the Defendants/Appellants in Maseno PM ELC Case No. 23 of 2018
  2. 2.Order of stay of execution of the decree in Maseno PM ELC Case No. 23 of 2018 granted pending appeal
  3. 3.Appellants to deposit in court security for costs valued at Kshs. 150,000/-
  4. 4.Costs in the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Limitation of Actions ActSection 38
On appeal from
Principal Magistrates Court of Kenya at Maseno
Maseno PM ELC Suit No. 23 of 2018 (Hezekiah Ongu'ndi v. Joshua Ouma and Others)
Jurisdiction invoked
Appellate jurisdiction under the Civil Procedure Act and Order 42 of the Civil Procedure Rules over appeals from the Principal Magistrates' Court

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, "Joshua Ouma & 2 others v Hezekiah Ong’undi Okumu [2021] KEELC 7 (KLR)", Case Analysis (2021). Maseno PM ELC Appeal (Environment and Land Court at Kisumu), arising from Maseno PM ELC Suit No. 23 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/7/eng@2021-10-01

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