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ELCPartially AllowedNotice of Motion dated 4th December, 2020 (Appeal against Wajir Magistrate Court Case No. 17 of 2015)· [2021] KEELC 2505 (KLR)

Nur Olow Farah A.K.A Olow Fara A.K.A Diriye Mohamed Olow v Muda Arale Farah & another [2021] KEELC 2505 (KLR)

Environment and Land Court
2 July 2021
ECE. C. Cherono
2,268 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Wajir halted an eviction, confirming that occupying land pending appeal counts as substantial loss justifying a stay.

What this practically means

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Executive summary

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The Applicant, dissatisfied with the judgment and order of eviction made on 27th November, 2020 by the Principal Magistrate's Court in Wajir Magistrate Court Case No. 17 of 2015, moved the Environment and Land Court by Notice of Motion dated 4th December, 2020 seeking stay of execution of the eviction order, stay of execution of proceedings, and stay of proceedings pending the hearing and determination of his appeal. He contended he had an arguable appeal with high chances of success, that the appeal would be rendered nugatory if stay was denied, and offered to furnish security. The 1st Respondent opposed, revealing that the trial court had already granted a 30-day stay that had not lapsed, alleged the application was an abuse of process, and sought an order that rent of Kshs.100,000/= allegedly collected from the suit property be deposited in a joint interest-earning account. The 2nd Respondent, through its County Secretary, highlighted related miscellaneous proceedings before the trial court and noted the parties were relatives of the same clan. The court applied Order 42 Rule 6(2) CPR, restating the three conditions: substantial loss, application without unreasonable delay, and security. Relying on Tabro Transporters Ltd v Absalom Dora Lubasis and Halal & another v Thornton & Turpin Ltd, it held that stay is a balancing act between the successful litigant's rights and the appellant's right of appeal, and that evicting the Applicant, who was in occupation and had developed rental houses, would cause substantial loss. Finding the motion merited, the court allowed it as prayed, directing that the Applicant remain in the suit property pending appeal, with costs to abide the appeal.

Key legal issues

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01

Substantial loss

Holding

Eviction of the Applicant, who was in occupation and had made substantial developments in rental houses, would amount to substantial loss

Reasoning

The court found the Applicant in occupation and possession of the developed suit property prior to the impugned judgment. If evicted, he would definitely suffer substantial loss. Since he did not intend to dispose of, sub-divide or alienate the property, justice favoured his remaining in occupation pending the appeal.

p. 4
02

Security and balancing of interests

Holding

The balance of convenience and the interest of justice favoured granting stay, with the Applicant undertakings not to alienate or change the character of the property

Reasoning

The court treated the stay application as a balancing exercise between the decree holder's rights and the appellant's right of appeal, and found that keeping the Applicant on the property pending appeal better served the interests of justice. The motion was found merited and allowed as prayed.

p. 4

Legal principles established

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  • Stay of execution pending appeal requires substantial loss, application without unreasonable delay, and security as ordered by the court
  • An application for stay is a balancing act between the successful litigant's rights and the appellant's right of appeal; eviction of a party in occupation and possession amounts to substantial loss

Court orders

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  1. 1.Stay of execution of the order of eviction made on 27th November, 2020 by the Principal Magistrate's Court in Wajir Magistrate Court Case No. 17 of 2015 granted pending the hearing and determination of the appeal
  2. 2.The Applicant/Appellant to remain in the suit property pending the intended appeal
  3. 3.Costs of the application to abide the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure ActSection 79A

Cases cited (2)

  • Tabro Transporters Ltd –Vs- Absalom Dora Lubasis
    (2012) eKLR
  • Halal & another –Vs- Thornton & Turpin Ltd
On appeal from
Principal Magistrate's Court, Wajir
Wajir Magistrate Court Case No. 17 of 2015
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules, stay of execution pending appeal

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, "Nur Olow Farah A.K.A Olow Fara A.K.A Diriye Mohamed Olow v Muda Arale Farah & another [2021] KEELC 2505 (KLR)", Case Analysis (2021). Notice of Motion dated 4th December, 2020 (Appeal against Wajir Magistrate Court Case No. 17 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2505/eng@2021-07-02

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