Jeremiah Otemo Okonyo v Registered Trustees African Divine Church & another [2021] KEELC 882 (KLR)
The bottom line
#The Environment and Land Court in Vihiga paused a land transfer order until an appeal is decided, but only if the appeal record is filed within 45 days.
What this practically means
#Executive summary
#Key legal issues
#Whether substantial loss would result to the Applicant if stay is not granted
Substantial loss was established because full execution of the decree would vest part of the suit land in the 1st Respondent, beyond the Applicant's control
The judgment cancelled the Applicant's title and ordered subdivision and transfer. Although the Applicant did not disclose the basis for fearing a sale, the court found that full execution would vest part of the suit land in the 1st Respondent, over whom the Applicant would have no control, and thus substantial loss would be occasioned if stay were refused.
Whether the Application was filed without unreasonable delay
There was no unreasonable delay; the application was filed within the period of the right of appeal
The judgment was delivered on 31 May 2021 and the application filed on 28 June 2021, within the period of the right of appeal. The court, agreeing with the Jaber Mohsen Ali case, held that what amounts to unreasonable delay depends on the surrounding circumstances of each case, and found none here.
Whether the requirement of security was satisfied
The Applicant made no proposals on security, but stay was granted on conditions in the special circumstances of the case, as remaining execution could be completed with minimal input from the Applicant
The Applicant said nothing about security, which the court noted is a mark of good faith. Nevertheless, given that execution had begun and the remaining process could be completed with minimal or no input from the Applicant should the appeal fail, the court granted stay but on conditions securing the Respondents' interests.
Whether the Application had been overtaken by events
Execution had partly taken place, but there was still something to stay - the actual subdivision and transfer of the resultant parcels
Annexures to the Replying Affidavit showed the Applicant's title had been cancelled, title reverted to the 2nd Respondent, and Land Control Board consent for subdivision obtained. The court nonetheless found that the actual subdivision and transfer of resultant parcels remained, so the application was not overtaken by events.
Legal principles established
#- The three conditions for stay of execution under Order 42 Rule 6(2) are substantial loss, application without unreasonable delay, and security
- The duty of the court in a stay application is to balance preventing an appeal being rendered nugatory against the successful litigant's right to enjoy the fruits of judgment
- Partial execution of a decree does not render a stay application overtaken by events where something remains to be stayed
Court orders
#- 1.Further execution of the decree/judgement dated 31/5/2021 be and is hereby stayed pending hearing and determination of the Appeal herein
- 2.Record of Appeal be filed within 45 days hereof failing which the stay order lapses
- 3.Deputy Registrar to call for the lower court file to enable directions on the appeal
- 4.Costs of the Application are awarded to the 1st Respondent in any event
- On appeal from
- Environment and Land Court, Vihiga
- VIHIGA ELC CASE NO 56 OF 2018 (formerly KSM ELC Case No. 236 of 2016)
- Jurisdiction invoked
- Order 42 Rule 6(3) and (6) Civil Procedure Rules & Section 3A of the Civil Procedure Act Cap 21 Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeremiah Otemo Okonyo v Registered Trustees African Divine Church & another [2021] KEELC 882 (KLR)", Case Analysis (2021). Vihiga ELC Appeal (arising from VIHIGA ELC CASE NO 56 OF 2018, formerly KSM ELC Case No. 236 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/882/eng@2021-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.