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ELCPartially AllowedBusia CM ELC No. 376 of 2011 (appeal therefrom; application dated 16 August 2021)· [2021] KEELC 1855 (KLR)

Jacob Osuru v Beatrice Asino Odwako [2021] KEELC 1855 (KLR)

Environment and Land Court
23 September 2021
AOA. Omollo
1,613 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 Kenyan court halted eviction from family land pending appeal, ruling that eviction causes losses money cannot repay.

What this practically means

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Executive summary

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The Appellant, Jacob Osuru Abiero, moved the Environment and Land Court at Busia under Order 42 Rule 6(2) of the Civil Procedure Rules seeking a stay of execution of the decree issued on 31 October 2019 in Busia CM ELC No. 376 of 2011, in which the Respondent obtained a permanent injunction against him in respect of L.R No. MARACHI/ELUKHARI/1816, a subdivision of MARACHI/ELUKHARI/131 which she claimed to have purchased from the Appellant's deceased father, Andrea Okoth Abiero. The Appellant argued that he had occupied the suit land for over 50 years with his family of over 20 members, that the Respondent had commenced eviction contrary to the decree, that his appeal had overwhelming chances of success, and that the underlying suit was statute-barred under section 7 of the Limitation of Actions Act. The Respondent opposed, contending that the prerequisites for stay were unmet and that the application was brought after undue delay. The court applied the principles in Butt v Rent Restriction Tribunal and the substantial-loss authorities of James Kamau v Leonid Limited and Peter Kiptarus v Kimaiyo Arap Rono. It found the delay explained satisfactorily, held that eviction pending appeal would occasion economic and emotional losses amounting to substantial loss, and found no useful purpose in ordering security since the land was registered in the Respondent's name. The court granted a stay of execution of the decree pending hearing and determination of the appeal, but awarded the costs of the application to the Respondent.

Key legal issues

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01

Substantial loss

Holding

Eviction from ancestral land pending appeal amounts to substantial loss that cannot be compensated in monetary terms

Reasoning

The Applicant deposed that he and his family of over 20 members have lived on and developed the suit land as their ancestral home for over 50 years. The Respondent sought his eviction. The court found that eviction causes economic and emotional losses amounting to substantial loss, and that it is in the interests of justice that the appeal be heard before eviction.

p. 3
02

Inordinate delay

Holding

The explanation of about two years' delay was satisfactory because the Applicant had first sought stay in the trial court, which was declined on 6 May 2021

Reasoning

Judgment was delivered on 31 October 2019 and the application filed nearly two years later. The Applicant explained that he applied for certified proceedings and first sought stay in the trial court, which declined it on 6 May 2021. The court found this explanation satisfactory.

p. 2
03

Security

Holding

No order for security was necessary because the suit land is registered in the Respondent's name

Reasoning

The decree sought to be executed concerns land registered in the Respondent's name; ordering the Appellant to deposit security would serve no purpose. Having found the conditions for stay met, the court granted the stay but awarded costs to the Respondent.

p. 3

Legal principles established

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  • The grant or refusal of a stay of execution is a discretionary power to be exercised so as not to render an appeal nugatory

Court orders

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  1. 1.Stay of execution of the decree issued on 31 October 2019 in Busia CM ELC No. 376 of 2011 pending hearing and determination of the appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Civil Procedure Rules, 2010Order 46 Rule 6(2)
  • Limitation of Actions Act, Cap 22 Laws of Kenyasection 7

Cases cited (3)

  • Butt vs Rent Restriction Tribunal
    [1982] KLR 417
  • James Kamau & 42 others vs. Leonid Limited
    (2021) eKLR
  • Peter Kiptarus & 3 others v Kimaiyo Arap Rono; Director of Surveys Land Registrar & 2 others (Interested Parties)
    [2021] eKLR
On appeal from
Principal Magistrate's Court, Busia
Busia CM ELC No. 376 of 2011
Jurisdiction invoked
Order 42 Rule 6(2) 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, "Jacob Osuru v Beatrice Asino Odwako [2021] KEELC 1855 (KLR)", Case Analysis (2021). Busia CM ELC No. 376 of 2011 (appeal therefrom; application dated 16 August 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1855/eng@2021-09-23

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