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ELCAllowedNot stated in the judgment· [2021] KEELC 1347 (KLR)

Jane Elizabeth Barasa v George Wesonga Ojwang’ & another [2021] KEELC 1347 (KLR)

High Court of Kenya at Busia
28 October 2021
AOA. Omollo
1,371 words in judgment
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The bottom line

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Kenya's High Court paused an eviction until an appeal is heard, because the landowner proved she would suffer real, uncompensatable loss.

What this practically means

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Executive summary

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The Applicant sought stay of execution of a judgment delivered on 28th April 2021 by Hon. Lady Justice A. Omollo at the Environment and Land Court at Busia, pending an intended appeal to the Court of Appeal. That judgment ordered her to give vacant possession of suit land Bukhayo/Mundika/2216 within ninety days, failing which she would be evicted. The application was brought under sections 1A, 3A and 65 of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules and rules 1(3) and 47 of the Court of Appeal Rules, 2010. The Respondents opposed, contending that the application offended Order 9 Rule 9 because the Applicant's current advocate was improperly on record, that no security had been provided, and that the application was an abuse of court. The court held that both sides' current advocates were properly on record, each having recorded consents with the outgoing firms. On the merits, the court applied the settled Order 42 requirements of substantial loss, absence of unreasonable delay and offer of security, relying on James Kamau & 42 others vs. Leonid Limited on the need for evidential proof of substantial loss. The Applicant showed she had built a semi-permanent house and six rental houses earning K.Shs. 21,000/- monthly on the suit land, and that eviction during the harvesting period would cause substantial loss. The Respondents addressed nothing on the merits of the stay prayer. The court found the application merited, granted stay of execution pending the appeal, and ordered that the costs of the application abide the winner in the appeal.

Key legal issues

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01

Whether the Applicant's advocate was properly on record after judgment

Holding

Both the Applicant's incoming advocate (Felix Otieno Oketch & Co. Advocates) and the Respondents' incoming advocate (B.M Ouma & Co. Advocates) were properly on record, each having recorded consents with the outgoing firms.

Reasoning

Order 9 Rule 9 bars a change of advocates after judgment without a court order or a consent between outgoing and incoming advocates. Here the outgoing firm Wanyama & Co. Advocates recorded a consent with Felix Otieno Oketch & Co. Advocates on 24th May 2021, and Calistus & Co. Advocates recorded a consent with B.M Ouma & Co. Advocates on 13th July 2021. The objection therefore failed.

p. 2
02

Whether the Applicant demonstrated substantial loss justifying stay of execution

Holding

The eviction of the Applicant, with her semi-permanent house, six rental houses generating K.Shs. 21,000/- per month, and developed cultivation, would cause substantial loss; the Respondents raised no merits-based answer to the stay prayer.

Reasoning

The Applicant deposed that she occupied the suit land Bukhayo/Mundika/2216 with a semi-permanent house and six rental units yielding monthly rent, and that eviction during the harvesting period would cause loss the Respondents might not compensate. The judgment below ordered vacant possession within ninety days, failing which eviction would issue. The Respondents addressed only the Order 9 Rule 9 objection and not the merits, so the court held the stay application merited.

p. 2

Legal principles established

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  • Stay of execution pending appeal requires proof of substantial loss, that the application was made without unreasonable delay, and willingness to provide security
  • An applicant for stay must provide evidence of the substantial loss she stands to suffer; the court and the respondent cannot speculate on it

Court orders

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  1. 1.Stay of execution pending hearing and determination of the appeal before the Court of Appeal is granted
  2. 2.The costs of this application to abide with the winner in the appeal

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A and 65
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 9 Rule 9
  • Court of Appeal Rules, 2010Rules 1(3) and 47

Cases cited (9)

  • Gichuhi Macharia & another vs. Kiai Mbaki & 2 Others
    (2016) eKLR
  • Rhoda Mukuma vs. John Abuoga
    (1988) eKLR
  • Francis Macharia Nzeki vs. Republic
    (2021) eKLR
  • Godfrey Wainaina Kinyanjui & another vs. Joseph Mwikya Musaa
    (2020) eKLR
  • HGE vs SM
    (2020) eKLR
  • Lalji Bhimji Shangani Builders and Contractors vs. City Council of Nairobi
    (2012) eKLR
  • Monica Moraa vs. Kenindia Assurance Co. Ltd
    (2010) eKLR
  • James Ndonyu vs. Muriuki Macharia
    (2020) eKLR
  • James Kamau & 42 others vs. Leonid Limited
    (2021) eKLR
On appeal from
Environment and Land Court at Busia
Not stated
Jurisdiction invoked
Sections 1A, 3A and 65 of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules and rules 1(3) and 47 of the Court of Appeal 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, "Jane Elizabeth Barasa v George Wesonga Ojwang’ & another [2021] KEELC 1347 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1347/eng@2021-10-28

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