Geofrey Sure Ogada (suing as administrator of the Estate of Joshua Ogada Ogonda (Deceased) v Reuben Otieno & another [2021] KEELC 2308 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff's application for police-assisted eviction could be granted
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
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.
Whether the defendants' application for review of the 22nd July 2020 stay conditions, extension of time and stay of execution should be allowed
Dismissed for inordinate delay and non-compliance with the conditional stay already granted
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).
Whether the court should balance the risk of injustice in declining the applications
The court approved the principle of taking the lower risk of injustice but declined both applications
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.
Legal principles established
#- 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
#- 1.The plaintiff's notice of motion dated 11th November 2020 and filed 12th November 2020 is declined/dismissed
- 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.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.