Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedMigori High Court ELC Civil Appeal No. 22 of 2020 (application arising therefrom)· [2021] KEELC 2392 (KLR)

Lawrence Ojwang & another v Duncane Otieno Anyach (Suing as a personal representative of the Estate of George Anyach Owuor [2021] KEELC 2392 (KLR)

Environment and Land Court
28 July 2021
GOG.M.A. Ongondo
1,345 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 execution of a land judgment because the defendants were never heard before the ex-parte ruling.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Migori (G.M.A. Ongondo, J) determined a Notice of Motion dated 18th August 2020 filed by the 1st and 3rd defendants (applicants) seeking stay of execution of an ex-parte judgment and decree dated 7th August 2019 delivered by the trial court, pending the hearing and determination of Migori High Court ELC Civil Appeal No. 22 of 2020. The application was brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6(1) of the Civil Procedure Rules, 2010. The applicants complained they were never made aware of the ex-parte hearing of 26th June 2019 and that the appeal, arising from a ruling of 9th July 2020, would be rendered nugatory absent a stay. The respondent opposed, contending the application was incompetent, based on a negative order, brought too late, and that his counsel was a stranger under Order 9; he deposed that he had executed the judgment and the suit land, parcel Kanyada/Kanyango/Klanya/861, was registered in his name. The court framed three issues: whether the appeal was arguable, whether it would be rendered nugatory, and whether the subject of the appeal required preservation. Relying on authorities including Butt v Rent Restriction Tribunal, Philip Chemwolo, and the Supreme Court's Moi High School Kabarak decision, the court found the appeal arguable on fair-hearing grounds under Articles 48, 50(1) and 25(c) of the Constitution, and held that under Section 13(7)(a) of the Environment and Land Court Act it had jurisdiction to issue interim preservation orders. The application was allowed in terms of the stay sought, with costs of the application to abide the appeal.

Key legal issues

#
01

Whether the appeal is arguable

Holding

The appeal is arguable as the memorandum of appeal raises grounds on fair hearing and determination on merits.

Reasoning

The court examined the memorandum of appeal annexed as 'LO10' and discerned grounds including fair hearing of the suit and determination of the suit on merits. Relying on David Morton Silverstein and John Odhiambo Roche, the court held that triable issues suffice; the appeal need not be shown likely to succeed. An ex parte judgment and decree existed, engaging the applicants' right to be heard.

p. 2
02

Whether the subject of the appeal should be preserved

Holding

The court has jurisdiction under Section 13(7)(a) of the ELC Act to grant interim preservation orders, and the substratum of the appeal required preservation.

Reasoning

The court found that under Section 13(7)(a) of the Environment and Land Court Act it possesses both original and appellate jurisdiction to grant interim preservation orders. Given the ex parte judgment had been executed and title registered in the respondent's name, preserving the suit land pending appeal was necessary to avoid rendering the appeal nugatory.

p. 2

Legal principles established

#
  • An arguable appeal is one raising triable issues, not one bound to succeed.
  • Grant of stay of execution is discretionary and depends on special circumstances of the case.

Court orders

#
  1. 1.Stay of execution of the ex-parte judgment/decree dated 7/8/2019 until the hearing and determination of Migori High Court ELC Civil Appeal No. 22 of 2020
  2. 2.Costs of the application to abide the outcome of the instant appeal

Authorities

#

Legislation

  • Civil Procedure Act, Chapter 21 Laws of Kenyasections 1A, 1B, 3A, 80
  • Civil Procedure Rules, 2010Order 42 Rule 6(1); Order 45 Rule 1(i)(a) and (b); Order 9; Order 50 Rule 16; Order 51 Rule 16
  • Constitution of Kenya, 2010Articles 25(c), 48, 50(1)
  • Environment and Land Court Act, 2015Section 13(7)(a)
  • Environment and Land Court Practice Directions, 2014Practice Direction Number 33

Cases cited (8)

  • Philip Chemwolo and another =vs= Augustine Kubende
    (1986) eKLR
  • Kiplagat Kotut =vs= Rose Jebor Kipugok
    (2015) eKLR
  • Kenya Commercial Bank Ltd =vs= Sun City Properties Ltd and 5 others
    (2012) eKLR
  • Shamad =vs= Shamji Bros and another
    (1957) EA 438
  • David Morton Silverstein =vs= Atsango Chesoni
    (2002) eKLR
  • John Odhiambo Roche =vs= Cyprian Laura Roche and another
    (2021) eKLR
  • Butt =vs= Rent Restriction Tribunal
    (1979) eKLR
  • Board of Governors, Moi High School Kabarak and another =vs= Malcom Bell
    (2013) eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21), Order 42 Rule 6(1) of the Civil Procedure Rules, 2010, and Section 13(7)(a) of the Environment and Land Court Act, 2015

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Lawrence Ojwang & another v Duncane Otieno Anyach (Suing as a personal representative of the Estate of George Anyach Owuor [2021] KEELC 2392 (KLR)", Case Analysis (2021). Migori High Court ELC Civil Appeal No. 22 of 2020 (application arising therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2392/eng@2021-07-28

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