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ELCAllowedEnvironment and Land Court Appeal (stay application arising from Homa Bay CM ELC No. E008 of 2020)· [2021] KEELC 732 (KLR)
Bonface Odhiambo Odira v Sipriano Odira Mwai & another [2021] KEELC 732 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#A Homa Bay court paused execution of a land judgment until the owner's appeal is heard, protecting his right to challenge the ruling.
What this practically means
#Executive summary
#By a Notice of Motion dated 13th August 2021 and filed on 14th October 2021 under Sections 3 and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules 2010, Boniface Odhiambo Odira, the applicant/appellant, sought stay of execution of the judgment and decree of Hon. T. Obutu dated 16th September 2021 in Homa-Bay Chief Magistrate's Court Environment and Land Case No. E008 of 2020, Sipriano Odira Mwai v Boniface Odhiambo Odira and Another, pending the hearing and determination of his intended appeal. Two prayers in the motion had become moot. The applicant complained that the stay earlier granted by the trial court was lapsing and that execution would expose him to substantial loss; he annexed letters requesting typed proceedings, the memorandum of appeal and a supporting affidavit. The respondents, Sipriano Odira Mwai and the County Land Registrar, filed no response. Interim stay had been granted on 14th October 2021 and extended on 16th November 2021. Counsel for the applicant filed submissions relying on Order 42 Rule 6 and Bethel Muiruri Benjamin v Development Bank of Kenya. Justice G M A Ongondo found that substantial loss might be occasioned if the decree were executed, that the delay in filing the application was explained, that no party is exempt from providing security though this is discretionary, and that triable issues were disclosed in the memorandum of appeal, the applicant having an undoubted right of appeal as noted in Butt v Rent Restriction Tribunal. The application was found unopposed, firm, cogent and merited. The court allowed order number 3 sought in the application and ordered that costs of the application be costs in the appeal. The ruling was delivered at Homa Bay on 30th November 2021.
Key legal issues
#01
Whether the conditions in Order 42 Rule 6 for stay of execution pending appeal were satisfied
Holding
The application was unopposed, firm, cogent and merited; stay of execution was granted pending the hearing and determination of the appeal.
Reasoning
The court found substantial loss may be occasioned if the judgment and decree are executed; delay in bringing the application was explained by the letters (BO-1), the grounds on the application and the supporting affidavit. No party is exempted from providing security, though that lies in the court's discretion. Triable issues were disclosed in the memorandum of appeal, and the applicant has an undoubted right of appeal per the Butt case.
p. 2
Legal principles established
#- Stay of execution under Order 42 Rule 6 requires demonstration of substantial loss, reasonable explanation of delay, and security for due performance of the decree
- An applicant with an undoubted right of appeal should not be prevented by execution from pursuing that appeal
Court orders
#- 1.Stay of execution of the judgment and decree of Hon. T. Obutu dated 16th September 2021 in Homa Bay CM ELC No. E008 of 2020 granted pending the hearing and determination of the appeal
- 2.Costs of the application to be costs in the appeal
- On appeal from
- Homa-Bay Chief Magistrate's Court (Environment and Land case)
- E008 of 2020
- Jurisdiction invoked
- Sections 3 and 3A of the Civil Procedure Act Cap 21 and Order 42 Rule 6 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bonface Odhiambo Odira v Sipriano Odira Mwai & another [2021] KEELC 732 (KLR)", Case Analysis (2021). Environment and Land Court Appeal (stay application arising from Homa Bay CM ELC No. E008 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/732/eng@2021-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.