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ELCAllowedKajiado CMCC 206 of 2017 (appeal thereto; Notice of Motion dated 6th January 2021)· [2021] KEELC 2410 (KLR)

Jeffer Shariff Omar & another v Omar Adan Sambul [2021] KEELC 2410 (KLR)

Environment and Land Court (sitting at Kajiado)
27 July 2021
COChristine Ochieng
1,832 words in judgment
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The bottom line

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The Environment and Land Court in Kajiado stopped eviction of long-term land occupants, confirming that winning an appeal starts with asking for a stay of execution.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kajiado (Christine Ochieng, J) determined the Appellants' Notice of Motion dated 6th January 2021 seeking stay of execution of the judgment of the Chief Magistrate in Kajiado CMCC 206 of 2017 delivered on 9th December 2020, which granted the Respondent a permanent injunction and eviction orders over Plot 211 Kajiado Town. The Appellants, who deponed through Jaffer Omar Shariff that they had occupied the suit land since 2003 and made substantial developments including a semi-permanent house, sand deposit and pit latrine, argued substantial loss, no unreasonable delay, and that the appeal would be rendered nugatory. The Respondent, Omar Adan Sambul, opposed, contending the Appellants had no arguable appeal, had produced no search or valid allotment, and that the County Government of Kajiado had supported his case in the lower court. Framing the sole issue as whether stay should issue pending appeal, the court set out Order 22 Rule 22 and Order 42 Rule 6(2) of the Civil Procedure Rules and applied the guidelines in Butt v Rent Restriction Tribunal. It found the application filed without unreasonable delay, noted the Appellants' occupation prior to the lower court suit and their Letter of Allotment dated 17th December 2003, found an arguable appeal on perusal of the Memorandum of Appeal, and held a right of appeal is a constitutional right best vindicated by a stay. The application was allowed; stay of execution was granted pending determination of the appeal, with costs in the cause.

Key legal issues

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Stay of execution pending appeal

Holding

The Appellants met the threshold in Order 42 Rule 6(2) - substantial loss, no unreasonable delay, and an arguable appeal - and stay was granted

Reasoning

The court found the application filed on 6th January 2021 after a 9th December 2020 judgment was without unreasonable delay. The Appellants had been in occupation since 2003, faced imminent eviction, and produced a Letter of Allotment dated 17th December 2003. On perusing the Memorandum of Appeal, the court found an arguable appeal which would be rendered nugatory absent a stay, applying the Butt v Rent Restriction Tribunal discretion guidelines.

p. 3

Legal principles established

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  • An intending appellant must seek stay of execution pending appeal since filing an appeal alone does not operate as a stay of execution
  • A right of appeal is a constitutional right and fair hearing is guaranteed where stay pending appeal is granted

Court orders

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  1. 1.A stay of execution of the judgement in Kajiado CMCC 206 of 2017 dated 9th December 2020 granted pending the hearing and determination of the Appeal
  2. 2.Costs of the application to be in the cause
On appeal from
Chief Magistrate's Court, Kajiado
CMCC 206 of 2017
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act; Order 22 Rule 22, Order 42 Rule 6 and Order 51 Rules 1, 3 & 4 of the Civil Procedure Rules

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, "Jeffer Shariff Omar & another v Omar Adan Sambul [2021] KEELC 2410 (KLR)", Case Analysis (2021). Kajiado CMCC 206 of 2017 (appeal thereto; Notice of Motion dated 6th January 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2410/eng@2021-07-27

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