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ELCAllowedKisumu ELC Appeal No. 8 of 2021 (application for stay of execution)· [2021] KEELC 478 (KLR)

Elisha Onyango Kibuye v Andrew Nanga Odhiambo [2021] KEELC 478 (KLR)

Environment and Land Court

3 December 2021

AOANTONY OMBWAYO

1,149 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kenyan court paused eviction from family land pending appeal, showing that acting quickly and proving real harm can protect your property during an appeal.

What this practically means

Executive summary

The appellant, Elisha Onyango Kibuye, moved the Environment and Land Court at Kisumu by notice of motion seeking a stay of execution of the judgment, decree and order dated 4th February 2021 in Tamu ELC Case No. 3 of 2018, pending the hearing and determination of his appeal, Kisumu ELC Appeal No. 8 of 2021, against Andrew Nanga Odhiambo. The appellant deponed that the suit land, KISUMU/WANG'AYA 1/965, was ancestral land given to him by his grandfather in 1979 and in his occupation since; that the respondent had conducted succession in the estate of Nanga Okungu without involving him, and that he intended to seek revocation of the grant; and that execution would render the appeal nugatory. The respondent opposed, contending the issues had already been determined in High Court Succession Cause No. 148 of 2014 and Tamu Principal Magistrate ELC No. 3 of 2018, that two courts had made concurrent findings, and that the appellant had not met the threshold for stay. Considering Order 42 Rule 6 of the Civil Procedure Rules, the court found no unreasonable delay - the memorandum of appeal was filed eight days after judgment, the record on 19/3/2021 and the application on 7/4/2021 - and found the appellant likely to suffer substantial loss given his occupation of the land since 1979. The court granted stay of execution pending appeal, directed that the appeal be fast-tracked, and ordered costs in the cause. The ruling was delivered electronically on 3rd December 2021 in line with COVID-19 directives.

Key legal issues

Delay in bringing the stay application

Holding

The application was made without unreasonable delay since the memorandum of appeal was filed 8 days after judgment, the record of appeal on 19/3/2021, and the stay application on 7/4/2021.

Reasoning

The court measured the timeline between delivery of the judgment on 4/2/2021 and the steps taken towards the appeal. Filing the memorandum of appeal eight days after judgment and the record of appeal within roughly six weeks, followed by the stay application on 7/4/2021, satisfied the requirement that the application be brought without unreasonable delay under Order 42 Rule 6(2).

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Substantial loss

Holding

The appellant was likely to suffer substantial loss because he had been in occupation of the suit land since 1979.

Reasoning

The appellant's long occupation of the ancestral land, said to have been given to him by his grandfather in 1979, persuaded the court that execution of the decree would cause him substantial loss and render the pending appeal nugatory. The respondent was found unlikely to suffer substantial prejudice during the period of stay, satisfying the substantial-loss limb of Order 42 Rule 6(2)(a).

p. 3

Legal principles established

No appeal operates as a stay of execution; stay pending appeal requires substantial loss, absence of unreasonable delay, and security for due performance of the decree.

Court orders

1.Stay of execution of the judgment/decree/order dated 4th February 2021 in Tamu ELC Case No. 3 of 2018 granted pending appeal
2.The appeal to be fast-tracked for hearing
3.Costs in the cause

Authorities

Legislation

Civil Procedure RulesOrder 42 Rule 6(1) and (2)

On appeal from: Principal Magistrate's Court (Tamu ELC Case No. 3 of 2018); Tamu ELC Case No. 3 of 2018
Jurisdiction invoked: Order 42 Rule 6 of the Civil Procedure Rules (appeal to the ELC against the magistrates' court decree)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Elisha Onyango Kibuye v Andrew Nanga Odhiambo [2021] KEELC 478 (KLR)", Case Analysis (2021). Kisumu ELC Appeal No. 8 of 2021 (application for stay of execution). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/478/eng@2021-12-03

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