Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated on the face of the judgment (arising from Mbita PM ELC Suit No. 6 of 2019)· [2021] KEELC 2335 (KLR)

Felix Nyaloo & 5 others v Raphael Sumba Ochieng [2021] KEELC 2335 (KLR)

Environment and Land Court
28 July 2021
GOG.M.A. Ongondo
1,165 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court at Migori halted eviction proceedings because the landowners' appeal raised real issues worth hearing.

What this practically means

#

Executive summary

#
The six appellants, through a Notice of motion dated 23rd December 2020 under Order 42 Rule 6 of the Civil Procedure Rules, 2010, sought a stay of execution of the judgment and decree in Mbita Principal Magistrate's Court ELC Suit No. 6 of 2019 pending the hearing and determination of their appeal before the Environment and Land Court at Migori. They contended they had built and resided on the suit parcel, Kasgunga/Kamreri/3003, and that execution would cause them substantial loss. The respondent, Raphael Sumba Ochieng, opposed the application through a replying affidavit, describing the appeal as frivolous and vexatious, asserting occupation since the early 1970s and title obtained upon first registration after adjudication, and noting the trial court order was eviction, not a boundary dispute. The parties filed rival written submissions. The court framed two issues: whether the appeal was arguable, and whether refusal of stay would render it nugatory. Applying the Mrao standard, the court found triable issues in the memorandum of appeal, notably acquisition of title to the suit land and the trial court's jurisdiction, rendering the appeal arguable. On the second issue, the court invoked Articles 48 and 50(1) of the Constitution, the Chemwolo and Butt authorities, the Supreme Court's Moi High School Kabarak dictum on safeguarding the subject matter of an appeal, and its power under Section 13(7)(a) of the Environment and Land Court Act to grant interim preservation orders. The application was allowed, with costs to abide the outcome of the appeal.

Key legal issues

#
01

Whether the appeal is arguable

Holding

The appeal is arguable because the memorandum of appeal discloses triable issues, including acquisition of title to the suit land and the jurisdiction of the trial court.

Reasoning

The court examined the memorandum of appeal and discerned triable issues. It adopted the Mrao standard that prima facie in civil cases is higher than an arguable case, and the dictionary meaning of 'arguable' as 'able to be argued or asserted'. Finding issues on title acquisition and trial court jurisdiction, it concluded the appeal was quite arguable.

p. 2
02

Whether the appeal would be rendered nugatory if stay is refused

Holding

Refusal of stay would render the appeal nugatory since the applicants have built and reside on the suit land and enjoy constitutional rights of access to justice and fair hearing.

Reasoning

The court invoked Article 48 (access to justice) and Article 50(1) (fair hearing) of the Constitution, and the Chemwolo and Butt authorities on the discretionary nature of stay. It relied on the Supreme Court's Moi High School Kabarak remark on safeguarding the subject matter of an appeal, and on the court's power under Section 13(7)(a) of the ELC Act to grant interim preservation orders.

p. 2

Legal principles established

#
  • An appeal is arguable where triable issues are discernible in the memorandum of appeal; prima facie in civil cases is a standard higher than an arguable case.
  • Grant of stay of execution is discretionary and is aimed at preserving the appeal, not preventing it.
  • The Environment and Land Court may grant interim preservation orders, including stay of execution of judgment and decree.

Court orders

#
  1. 1.Stay of execution of the judgment/decree in Mbita Principal Magistrate's Court ELC Suit No. 6 of 2019 pending the hearing and determination of the appeal filed before the Environment and Land Court
  2. 2.Costs of the application to abide the outcome of the appeal

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50(1)
  • Civil Procedure ActSections 3 and 3A
  • Environment and Land Court Act, 2015Section 13(7)(a)

Cases cited (7)

  • Samuel Njagi M'nyamba =vs= Gilbert Ndwiga Mwangie
    (2019) eKLR
  • Mrao Ltd =vs= First American Bank of Kenya Ltd and 2 others
    (2003) KLR 125
  • Shamad =vs= Shamji Bros and another
    (1957) EA 438
  • Philip Chemwolo and another v Augustine Kubende
    (1982-88) KAR 103
  • Butt vs Rent Restriction Tribunal
    (1979) eKLR
  • Board of Governors, Moi High School Kabarak and another v Malcolm Bell
    (2013) eKLR
  • Malindi Law Society of Kenya v Law Society of Kenya Nairobi Branch and 5 others
    Civil Application No. 20 of 2017 (2017) eKLR
On appeal from
Mbita Principal Magistrate's Court
ELC Suit No. 6 of 2019
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010; Sections 3 and 3A of the Civil Procedure Act (Cap 21); Section 13(7)(a) of the Environment and Land Court Act, 2015; Articles 48 and 50(1) of the Constitution of Kenya, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Felix Nyaloo & 5 others v Raphael Sumba Ochieng [2021] KEELC 2335 (KLR)", Case Analysis (2021). Not stated on the face of the judgment (arising from Mbita PM ELC Suit No. 6 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2335/eng@2021-07-28

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