John Lango Otieno v Bendeka Holdings Limited & another [2021] KEELC 407 (KLR)

High Court of Kenya

24 November 2021

AOAntony Ombwayo

1,317 words in judgment

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The bottom line

The High Court in Kisumu refused to stop an eviction-based land development because the appellant delayed three months, was already evicted, and sought the wrong court order.

What this practically means

Executive summary

The appellant, John Lango Otieno, appealed against an exparte judgment and decree of 9 December 2020 in an eviction suit by the respondents, Bendeka Holdings Ltd and Stephen Juma Ndeda, over LR No. 17307 and LR No. 17308. His application of 7 January 2021 seeking to set aside the decree and stay execution was dismissed on 25 January 2021, the trial court holding it was functus officio. He lodged the present appeal together with a Notice of Motion dated 8 March 2021 under Order 42 Rule 6 seeking an order restraining the respondents from further developing or disposing of the suit parcels pending the appeal. The respondents opposed, arguing the prayers were injunctive rather than for stay, and that execution had been concluded - the respondents were in possession and had erected a perimeter wall. Antony Ombwayo J found that the appellant had already been evicted and that the appropriate order would have been a temporary injunction under Order 42 Rule 6(6), which was not sought, holding that a court cannot grant what has not been prayed for. The court, however, discerned the application as one for an injunction pending appeal and considered it on its merits in the interest of substantive justice. It found approximately three months' delay inordinate and no demonstration of substantial loss incapable of compensation by damages. The application was dismissed with costs. The ruling was delivered electronically at Kisumu on 24 November 2021 due to COVID-19 restrictions.

Key legal issues

Whether the court could grant a stay of execution where execution had already been concluded and the appellant had been evicted

Holding

No; the proper remedy in such circumstances is a temporary injunction pending appeal under Order 42 Rule 6(6), not a stay

Reasoning

The court found no dispute that the appellant had already been evicted and the respondents were constructing on the land. A stay of execution is inappropriate where execution is complete; the correct order would have been a temporary injunction. Although the prayer was 'jumbled and not clear', the court discerned that an injunctive order pending appeal was actually being sought and considered it substantively under Order 42 Rule 6(6).

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Whether the appellant satisfied the conditions for injunctive relief pending appeal

Holding

No; the application failed due to inordinate delay of approximately three months and failure to demonstrate substantial loss not compensable by damages

Reasoning

Applying the considerations for orders under Order 42 Rule 6, the court found the delay of about three months in coming to court inordinate. Further, the appellant did not demonstrate substantial loss that could not be compensated with damages, and the respondents were already in possession having erected a perimeter wall. The application was therefore dismissed with costs.

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Legal principles established

Under Order 42 Rule 6(6), the High Court in exercise of its appellate jurisdiction may grant a temporary injunction pending appeal, provided the procedure for instituting an appeal from a subordinate court has been complied with
A court cannot grant relief that has not been prayed for

Court orders

1.The Notice of Motion dated 8/3/2021 is dismissed
2.Costs of the application to the respondents

Authorities

Legislation

Civil Procedure RulesOrder 42 Rule 6(1)
Civil Procedure RulesOrder 42 Rule 6(2)
Civil Procedure RulesOrder 42 Rule 6(3)
Civil Procedure RulesOrder 42 Rule 6(4)
Civil Procedure RulesOrder 42 Rule 6(5)
Civil Procedure RulesOrder 42 Rule 6(6)
Constitution of KenyaRight to be heard and right to own property (referred to as the Applicant's constitutional rights)

On appeal from: Not stated in the judgment (subordinate court); Not stated
Jurisdiction invoked: Appellate jurisdiction under Order 42 Rule 6 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "John Lango Otieno v Bendeka Holdings Limited & another [2021] KEELC 407 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/407/eng@2021-11-24

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