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ELCDismissed· [2021] KEELC 2308 (KLR)

Geofrey Sure Ogada (suing as administrator of the Estate of Joshua Ogada Ogonda (Deceased) v Reuben Otieno & another [2021] KEELC 2308 (KLR)

High Court of Kenya (trial court exercising original jurisdiction; stated rank 'Judge')
29 July 2021
1,882 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling by G.M.A. Ongondo, Judge, disposed of twin interlocutory applications arising from a judgment delivered on 3rd December 2019 in favour of the plaintiff over land parcel Kanyamkago/Kawere 1/1176 (now subdivided as 3853 and 3854). By the first application dated 11th November 2020, the plaintiff, invoking sections 3A, 30 and 34 of the Civil Procedure Act and the Auctioneer Rules, sought an order directing the OCS Uriri Police Station to provide security to Ikimwanya Auctioneers to evict the defendants, Reuben Otieno Disi and Karilus Odie, and demolish their structures. The defendants opposed, asserting a pending appeal (Kisumu Court of Appeal Civil Appeal No. E53 of 2020) that would be rendered nugatory. By the second application dated 19th March 2021, the defendants sought review of the court's ruling of 22nd July 2020 to substitute a title deed (LR No. Kanyamkago/Kawere/1/5654) for the Kshs 100,000/= security deposit, extension of time to file the record of appeal, and stay of execution pending appeal. The plaintiff opposed, citing inordinate delay of seven months and non-attendance to the conditional stay terms. The court noted the plaintiff's entitlement to the fruits of judgment but found that, by dint of Order 42 Rule 6(4) of the Civil Procedure Rules, the defendants' appeal was deemed filed, leaving the trial court devoid of jurisdiction to take any further step, following Motor Vessel Lilian 'S'. The defendants' application failed for inordinate delay and non-compliance with the conditional stay. Both applications were declined with no order as to costs.

Key legal issues

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01

Whether the plaintiff's application for police-assisted eviction could be granted

Holding

Declined; once the defendants' appeal was deemed filed under Order 42 Rule 6(4), the court lacked jurisdiction to take any further step in the matter

Reasoning

The court acknowledged the plaintiff's entitlement to the fruits of the judgment of 3rd December 2019 and that unlawful occupation of private land is prohibited under section 152A of the Land Act. However, by dint of Order 42 Rule 6(4) of the Civil Procedure Rules, an appeal to the Court of Appeal was deemed filed, and citing Motor Vessel Lilian 'S', the court held it had no power to make one more step.

p. 3
02

Whether the defendants' application for review of the 22nd July 2020 stay conditions, extension of time and stay of execution should be allowed

Holding

Dismissed for inordinate delay and non-compliance with the conditional stay already granted

Reasoning

The court found the defendants had gone into slumber for seven months after the ruling of 22nd July 2020 and had not complied with the conditional stay. Applying the principle that delay defeats equity (Article 10(2)(b)) and the Court of Appeal decision in Macharia Mwangi Maina, the court held it could not aid the defendants' inordinate delay, while acknowledging the fair-hearing right under Article 50(1).

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03

Whether the court should balance the risk of injustice in declining the applications

Holding

The court approved the principle of taking the lower risk of injustice but declined both applications

Reasoning

Citing Films Role Industrial Ltd v Cannon Film Sales Ltd (Hoffman J), the court approved the principle that the court should take the lower risk of injustice, yet concluded both applications failed - the plaintiff's for want of jurisdiction, the defendants' for delay and non-compliance.

p. 3

Legal principles established

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  • A party entitled to judgment is entitled to the fruits of that judgment, which should be effectual
  • Stay of execution is not granted as a matter of course but on genuine grounds, conditions and dispatch
  • Delay defeats equity; a court of equity cannot aid a party guilty of inordinate delay in seeking review of its orders
  • Once an appeal to the Court of Appeal is deemed filed under Order 42 Rule 6(4) of the Civil Procedure Rules, the trial court is devoid of jurisdiction to take any further step in the matter

Court orders

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  1. 1.The plaintiff's notice of motion dated 11th November 2020 and filed 12th November 2020 is declined/dismissed
  2. 2.The defendants' notice of motion (dated 19th March 2021, referred to in the final order as dated 19th November 2020) is declined/dismissed
  3. 3.No order as to costs

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1, 1A, 1B, 3A, 30, 34
  • Auctioneer RulesRules 9(a)(b)(c) and 12(2)(b)
  • Civil Procedure Rules, 2010Order 51 rule 16; Order 42 Rule 6(4)
  • Constitution of Kenya, 2010Articles 10(2)(b), 25(c), 50(1), 159(2)(b) and (e)
  • Land Act, 2016 (2012)Section 152A
  • National Police Service ActSection 24

Cases cited (11)

  • Njeru Mugera =vs= Emina L. Nkirote Njagi
    (2016) eKLR
  • Giella =vs= Cassman Brown
    (1973) EA 358
  • Ngurman Limited =vs= Jan Bonde Nielsen and 2 others
    (2014) eKLR
  • Pius Kipchirchir Kogo =vs= Frank Kimeli Tenai
    (2018) eKLR
  • Shahmad =vs= Shamji Bros and another
    (1957) EA 438
  • Malindi LSK =vs= LSK Nairobi Branch and 5 others
    (2017) eKLR
  • Macharia Mwangi Maina and 37 others =vs= Davidson Mwangi Kagiri
    (2014) eKLR
  • Philip Chemwolo =vs= Augustine Kubende and another
    (1982-88) KAR 103
  • James Kanyiita Nderitu and another =vs= Philotas Ghikas and another
    (2014) eKLR
  • Films Role Industrial Ltd =vs= Cannon Film Sales Ltd
    (1986) ALL ER 7722
  • Motor Vessel Lilian "S" v Caltex Oil Kenya (K) Ltd
    (1989) KLR
Jurisdiction invoked
Sections 3A, 30 and 34 of the Civil Procedure Act (Cap 21) and Auctioneer Rules, 1996 (1st application); sections 1, 1A, 1B, 3A Civil Procedure Act (2nd application)

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, "Geofrey Sure Ogada (suing as administrator of the Estate of Joshua Ogada Ogonda (Deceased) v Reuben Otieno & another [2021] KEELC 2308 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2308/eng@2021-07-29

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