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ELCAllowedNotice of Motion dated 24th June 2021 (arising from Homa Bay CM's Court Environment and Land Case No. 35 of 2018)· [2021] KEELC 1345 (KLR)

Lucy Akeyo Oginga v Caleb Ochieng Nyarera (Suing as the legal representative of the estate of Selina Aoko Mbeche-Deceased) [2021] KEELC 1345 (KLR)

Environment and Land Court of Kenya
26 October 2021
1,422 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Homa Bay landowner won a pause on her eviction and damages order, but only after promising Kshs.50,000 security within 30 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 Homa Bay (G M A Ongondo J) on a Notice of Motion dated 24th June 2021 by Lucy Akeyo Oginga, the applicant, seeking stay of execution of a judgment delivered on 16th June 2021 by R B N Maloba (PM) in Homa Bay CM's Court Environment and Land Case No. 35 of 2018. The trial court had dismissed the applicant's suit, declared the respondent owner of LR No. Kanyada/Kotieno Katuma/686, granted eviction orders against the applicant and awarded the respondent Kshs.500,000 damages for trespass. The applicant, aggrieved and intending to appeal, argued she would suffer substantial loss, that the application was brought without unreasonable delay, and that the suit land should be preserved. The respondent opposed through a replying affidavit and grounds of opposition, contending the threshold for stay was not met and the application was meant to obstruct the judgment. The respondent filed submissions citing Kenya Shell Ltd v Benjamin Karuga Kibiru and Butt v Rent Restriction Tribunal; the applicant filed none despite directions. The court held the application was lodged within a reasonable period, invoking Article 10(2)(b) of the Constitution on equity and Article 48 on access to justice. It found special circumstances: hotly contested ownership, alleged threatened eviction, and an undoubted right of appeal which could be rendered nugatory. Applying section 13(7)(a) of the ELC Act and its inherent jurisdiction to preserve the subject-matter, the court allowed the stay on condition that the applicant deposit Kshs.50,000 in court within thirty days as security, failing which the stay lapses automatically. Costs of the application were to abide the intended appeal.

Key legal issues

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Whether the conditions for stay of execution under Order 42 Rule 6 were met, and whether special circumstances existed

Holding

The application was filed within a reasonable time; the ownership of the suit land was hotly contested, the applicant faced threatened eviction, and the intended appeal would be rendered nugatory without a stay; the application was allowed subject to security.

Reasoning

The court noted the judgment was delivered on 16th June 2021, the memorandum of appeal was filed on 24th June 2021 and the application lodged on 1st July 2021, so there was no unreasonable delay. Anchoring itself on Article 10(2)(b) of the Constitution and the maxim that equity aids the vigilant, the court found special circumstances: contested ownership of the land, alleged threatened eviction, and the applicant's undoubted right of appeal under Article 48 which could be rendered nugatory. The court invoked its power under section 13(7)(a) of the ELC Act and its inherent jurisdiction to preserve the subject-matter, and granted stay conditioned on a Kshs.50,000 deposit as security within 30 days.

p. 2
02

The respondent's vested right to the decree

Holding

The respondent holds a vested right to the judgment and decree which ought to be effectual, following Shahmad v Shamji Bros (1957) EA 438.

Reasoning

The court observed that the decree was issued pursuant to the trial court's judgment and that the suit land was registered in the name of the deceased per the documents annexed to the respondent's replying affidavit. It nonetheless balanced this vested right against the applicant's right of appeal and the need to preserve the subject-matter, resolving the balance through a conditional stay with security for due performance.

p. 2

Legal principles established

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  • The ELC has mandate to grant interim preservation orders which are not excluded by a stay order
  • The court has inherent jurisdiction to safeguard the character and integrity of the subject-matter of an appeal pending resolution of contested issues
  • A party who has a decree holds a vested right to the judgment and decree which ought to be effectual

Court orders

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  1. 1.Stay of execution of the judgment delivered on 16th June 2021, the subsequent decree and all further proceedings pursuant to the judgment, pending the hearing and determination of the intended appeal
  2. 2.The applicant to deposit in court within thirty (30) days the sum of Kshs.50,000 as security for the due performance of such decree or order as may ultimately be binding upon him, failing which the stay shall automatically lapse without further orders
  3. 3.Costs of the application to abide the intended appeal, to be filed and served within thirty (30) days from the date of the order

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Civil Procedure Rules, 2010Order 50 Rules 6 and 8
  • Environment and Land Court (ELC) Practice Directions, 2014Practice Direction number 33
  • Constitution of Kenya, 2010Article 10(2)(b)
  • Constitution of Kenya, 2010Article 48
  • Environment and Land Court Act, 2015 (2011)Section 13(7)(a)

Cases cited (4)

  • Kenya Shell Limited-vs-Benjamin Karuga Kibiru and another
    (1986) eKLR
  • Butt-vs-Rent Restriction Tribunal
    (1979) eKLR
  • Shahmad-vs-Shamji Bros and another
    (1957) EA 438
  • Board of Governors, Moi High School, Kabarak and another –vs- Malcolm Bell
    (2013) eKLR
On appeal from
Homa Bay Chief Magistrate's Court (Environment and Land Case No. 35 of 2018)
ELC No. 35 of 2018
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010; section 13(7)(a) of the Environment and Land Court Act, 2015 (2011)

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, "Lucy Akeyo Oginga v Caleb Ochieng Nyarera (Suing as the legal representative of the estate of Selina Aoko Mbeche-Deceased) [2021] KEELC 1345 (KLR)", Case Analysis (2021). Notice of Motion dated 24th June 2021 (arising from Homa Bay CM's Court Environment and Land Case No. 35 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1345/eng@2021-10-26

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