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ELCAllowedNot stated in the judgment· [2021] KEELC 582 (KLR)

Onyango Oriri & 2 others v Benard Onyango Ojwang & another [2021] KEELC 582 (KLR)

Environment and Land Court
22 November 2021
GOG.M.A Ong'ondo
379 words in judgment
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The bottom line

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The Environment and Land Court in Homa-Bay paused execution of a land judgment pending appeal, after the parties agreed the land title would be held as security.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Homa-Bay (Ong'ondo, J) delivered on 22nd November 2021 on a Notice of Motion dated 19th October 2021 by the applicants, who were appellants before the court. They sought, as the substantive prayer, an order of stay of execution of the judgment of the trial Court delivered on 23rd September 2021 and all consequential orders and decree, pending the hearing and determination of the appeal, together with any just orders and costs. The 1st Respondent swore a 13-paragraph replying affidavit on 18th November 2021 opposing the application and seeking its dismissal with costs. The parties, however, agreed that security be provided by way of deposit of the title deed in respect of the suit land, Kasigunga/Kemreri/756, with the court. The court was guided by Article 159(2)(b) and (c) of the Constitution, the decision in Butt v Rent Restriction Tribunal (1979) eKLR, and section 13(7)(a) of the Environment and Land Court Act, which governs preservation orders including stay of execution. Holding the Notice of Motion merited, the court granted prayer 3 on the terms that the applicants forthwith deposit the title of the suit land with the court, ordered that costs of the motion be costs in the appeal, directed the appellants' counsel to file and serve the record of appeal within 21 days, and fixed mention for 25th January 2022 to confirm compliance and for directions.

Key legal issues

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01

Whether stay of execution pending appeal should issue

Holding

The Notice of Motion was found merited and stay was granted on condition that the applicants deposit the title of the suit land with the court, the parties having agreed to security by way of deposit of title deed.

Reasoning

The court invoked Article 159(2)(b) and (c) of the Constitution favouring alternative and expeditious dispute resolution, and the principles in Butt v Rent Restriction Tribunal on stay of execution. It also grounded the stay in section 13(7)(a) of the Environment and Land Court Act, 2015, which empowers preservation orders including stay of execution. The parties having agreed that security be by deposit of the title deed for Kasigunga/Kemreri/756, the court granted prayer 3 and made directions for expeditious prosecution of the appeal.

p. 1

Legal principles established

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  • The court is guided by Article 159(2)(b) and (c) of the Constitution and the Butt v Rent Restriction Tribunal principles in applications for stay of execution, and by section 13(7)(a) of the Environment and Land Court Act governing preservation orders including stay of execution.

Court orders

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  1. 1.Stay of execution of the judgment of the trial Court delivered on 23rd September 2021 and all consequential orders and decree granted (prayer 3) on condition that the applicants deposit the title/title deed of the suit land, Kasigunga/Kemreri/756, with the court forthwith
  2. 2.Costs of the Notice of Motion to be costs in this appeal
  3. 3.Appellants' counsel to file and serve the record of appeal within 21 days from the date of the ruling
  4. 4.Mention to confirm compliance and for directions on 25th January 2022

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(b) and (c)
  • Environment and Land Court Actsection 13(7)(a)

Cases cited (1)

  • Butt v Rent Restriction Tribunal
    (1979) eKLR
On appeal from
Trial Court (not named in the judgment)
Jurisdiction invoked
Article 159(2)(b) and (c) of the Constitution of Kenya, 2010; section 13(7)(a) of the Environment and Land Court Act; and the decision in Butt v Rent Restriction Tribunal (1979) eKLR

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, "Onyango Oriri & 2 others v Benard Onyango Ojwang & another [2021] KEELC 582 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/582/eng@2021-11-22

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