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ELCAllowedNot stated in the judgment (Notice of Motion dated 3rd September 2021)· [2021] KEELC 1096 (KLR)

Solomon Omolo Ochuodho v Moses Odhiambo Achacha [2021] KEELC 1096 (KLR)

Environment and Land Court
10 November 2021
GOG.M.A Ong'ondo
430 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court paused execution of a land ruling pending appeal after both sides agreed to keep things unchanged for now.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Homa-Bay (G.M.A Ong'ondo, J) on a Notice of Motion dated 3rd September 2021 by Solomon Omolo Ochuodho, the appellant, brought under Order 42 rule 6 and Order 51 of the Civil Procedure Rules, 2010. He sought a stay of execution of a ruling delivered on 25th August 2021 and all consequential orders pending the hearing and determination of his appeal, supported by a 12-paragraph affidavit and a memorandum of appeal on the ground that the appeal raised weighty, triable issues with high chances of success. The respondent, Moses Odhiambo Achacha, through G.S Okoth, filed grounds of opposition dated 25th October 2021, but at the hearing confirmed that he had no intention of executing the trial court's ruling and proposed maintenance of the status quo, a position affirmed by the appellant's counsel. Guided by section 13(7)(a) of the Environment and Land Court Act, Butt v Rent Restriction Tribunal, Ogada v Mollin and Practice Direction No. 32 of the ELC Practice Directions 2014, the court allowed the stay and directed the parties to maintain the status quo. It ordered the appellant to file and serve the record of appeal within 30 days, the Deputy Registrar to urgently call for the trial court's record, and fixed the appeal for further orders and directions on 2nd February 2022. No costs order was made.

Key legal issues

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01

Whether the conditions for stay of execution pending appeal under Order 42 rule 6 were satisfied

Holding

Stay granted with parties maintaining the status quo pending the hearing and determination of the appeal.

Reasoning

The court considered the application under Order 42 rule 6, its jurisdiction under section 13(7)(a) of the Environment and Land Court Act, and the authorities cited (Butt v Rent Restriction Tribunal and Ogada v Mollin). Counsel for the respondent confirmed no intention to execute the ruling and requested maintenance of status quo, which the appellant's counsel affirmed. On that common position, the court allowed the stay sought and gave directions for the expeditious prosecution of the appeal.

p. 1

Legal principles established

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  • Where the respondent does not intend to execute the decision under appeal, the court may grant stay on terms of maintaining the status quo pending the appeal.

Court orders

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  1. 1.Order No. 3 sought (stay of execution) allowed and the parties to maintain the status quo accordingly
  2. 2.The appellant's counsel to file and serve the record of appeal within 30 days from the date of the ruling
  3. 3.The Deputy Registrar to call for the original record and certified copies of proceedings and ruling from the trial court urgently
  4. 4.The appeal fixed for further orders and directions on 2nd February 2022

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6
  • Civil Procedure Rules, 2010Order 51
  • Environment and Land Court ActSection 13(7)(a)
  • Environment and Land Court Practice Directions 2014Practice Direction No. 32

Cases cited (2)

  • Butt versus Rent Restriction Tribunal
    (1979) eKLR
  • Ogada versus Mollin
    (2009) KLR 620
On appeal from
Trial court (magistrates' court)
Jurisdiction invoked
Section 13(7)(a) of the Environment and Land Court Act, 2015; Order 42 rule 6 and Order 51 of the Civil Procedure Rules, 2010

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, "Solomon Omolo Ochuodho v Moses Odhiambo Achacha [2021] KEELC 1096 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 3rd September 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1096/eng@2021-11-10

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