Joshua Ouma & 2 others v Hezekiah Ong’undi Okumu [2021] KEELC 7 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the application was made without unreasonable delay
The delay from judgment on 22/5/2020 to application on 16th June 2020 was not unreasonable given the COVID-19 pandemic.
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.
Whether substantial loss would result to the applicants absent a stay
Substantial loss was established because the appellants faced imminent eviction from the suit parcel if stay was not granted.
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).
Security for due performance of the decree
Stay was granted on condition the appellants deposit security for costs of Kshs. 150,000/- in court.
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.
Legal principles established
#- 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
#- 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.Order of stay of execution of the decree in Maseno PM ELC Case No. 23 of 2018 granted pending appeal
- 3.Appellants to deposit in court security for costs valued at Kshs. 150,000/-
- 4.Costs in the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.