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ELCAllowedVihiga ELC Appeal (arising from VIHIGA ELC CASE NO 56 OF 2018, formerly KSM ELC Case No. 236 of 2016)· [2021] KEELC 882 (KLR)

Jeremiah Otemo Okonyo v Registered Trustees African Divine Church & another [2021] KEELC 882 (KLR)

Environment and Land Court
18 October 2021
2,226 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Vihiga (E Asati, J) on the Applicant's Notice of Motion dated 16 June 2021 seeking interim stay of execution of the judgment and decree delivered on 31 May 2021 in VIHIGA ELC CASE NO 56 OF 2018, pending the hearing and determination of the Applicant's appeal. The judgment under appeal dismissed the Applicant's suit, cancelled his title to LR No. E BUNYORE/E BUSAMIA/1027, ordered reversion to the 2nd Respondent and subdivision with transfer of portions to the 1st Respondent and the Applicant. The court identified three issues: whether the application met the Order 42 Rule 6(2) threshold, whether it was overtaken by events, and costs. On substantial loss, 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. The application was filed within the period of the right of appeal, so there was no unreasonable delay. Although the Applicant made no offer of security, the court in the special circumstances of the case - execution having already partly begun (title cancelled, title reverted, LCB consent for subdivision obtained) - held there was still something to stay, namely the actual subdivision and transfer of resultant parcels. The court allowed the application: further execution of the decree was stayed pending appeal, conditional on the Record of Appeal being filed within 45 days failing which the stay lapses; the Deputy Registrar was directed to call for the lower court file; and costs of the application were awarded to the 1st Respondent in any event.

Key legal issues

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01

Whether substantial loss would result to the Applicant if stay is not granted

Holding

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

Reasoning

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.

p. 3
02

Whether the Application was filed without unreasonable delay

Holding

There was no unreasonable delay; the application was filed within the period of the right of appeal

Reasoning

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.

p. 3
03

Whether the requirement of security was satisfied

Holding

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

Reasoning

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.

p. 3
04

Whether the Application had been overtaken by events

Holding

Execution had partly taken place, but there was still something to stay - the actual subdivision and transfer of the resultant parcels

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Record of Appeal be filed within 45 days hereof failing which the stay order lapses
  3. 3.Deputy Registrar to call for the lower court file to enable directions on the appeal
  4. 4.Costs of the Application are awarded to the 1st Respondent in any event

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(3) and (6)
  • Civil Procedure Rules 2010Order 42 Rule 6(2)
  • Civil Procedure Act Cap 21 Laws of KenyaSection 3A
  • Civil Procedure ActSections 1A and 1B

Cases cited (10)

  • James Wangalwa & Another –Vs- Agnes Naliaka Cheseto
    [2012] eKLR
  • Kariuki Njuri –vs- Francis Kimaru Rwara (suing as Administrator of the Estate of Rwara Kimaru alias Benson Rwara Kimaru (Deceased)
    2020 eKLR
  • Dr. Daniel Chebutuk Rotich –vs- Morgan Kimaset Chebutuk
  • Charles Wahome Gethi vs Angela Wairimu Gethi
    [2008] eKLR
  • Shell Kenya Ltd vs Benjamin Karuga Kibiru & Another
    [1986] eKLR 410
  • Jaber Mohsen Ali & Anor vs Priscillah Boit & Another
    [2014] eKLR
  • Aron C. Sharma vs Ashana Raikundalia t/a Raikundaria & Co Advocates
  • Focin Motorcycle Co. Ltd –vs- Ann Wambui Wangui & Another
    [2018] eKLR
  • Butt vs Rent Restriction Tribunal
    [1982] KLR 417
  • HGE vs SM
    [2020] e KLR
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

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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, "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.