Hellen Auma Ojuok v Mary Omollo Odongo & another [2021] KEELC 3397 (KLR)
The bottom line
#The court refused to pause a land judgment on appeal because the applicants missed appeal deadlines, proved no harm, and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for stay pending appeal was made without unreasonable delay
The application was filed about 5 months after judgment; although the Covid-19 registry closure was considered, the notice of appeal itself was filed 3 months and 19 days out of time without leave, which is inordinate delay.
Judgment was delivered on 13/03/2020 and the application filed on 18/08/2020, about 5 months later. The Court accepted the Covid-19 pandemic and closure of registries likely contributed to the delay and found the delay excusable in that respect, but the notice of appeal was lodged far outside the 14-day period under Rules 74 and 75 of the Court of Appeal Rules, and no leave to file out of time was shown to have been obtained.
Whether the applicants demonstrated substantial loss
No substantial loss was demonstrated; there was no evidence the suit property formed part of the applicants' homestead, and the Court had found the respondent in occupation for 47 years.
The applicants asserted they would be dispossessed of the property and their only source of income, but produced no photographs, survey reports or other empirical evidence of occupation. The respondent, who had occupied the land since 1973, would be prejudiced. The applicants also did not show they could not recover costs from the respondent if the appeal succeeded.
Whether there is a valid intended appeal capable of founding stay
No valid appeal existed: the notice of appeal was filed 3 months and 19 days out of time without leave, and the applicants failed to demonstrate that their application for leave to appeal out of time was allowed; no draft memorandum of appeal was attached.
Rules 74 and 75 of the Court of Appeal Rules require a notice of appeal within 14 days. The notice filed on 02/07/20 was out of time. The alleged application of 17/12/2020 for leave to appeal out of time was not exhibited as claimed, and no order showing it was allowed was annexed. Without a valid appeal and without a memorandum of appeal showing arguable grounds, stay could not issue.
Whether security for due performance of the decree was offered
The applicants offered no security for due performance of the decree, a mandatory condition under Order 42 Rule 6(2)(b).
The rule requires the applicant to furnish such security as the court orders for due performance of the decree. The applicants neither offered nor proposed any security, which independently disentitled them to a stay.
Legal principles established
#- The applicant for stay pending appeal must satisfy the conditions of substantial loss, application without unreasonable delay, and security for due performance of the decree under Order 42 Rule 6(2).
- Where a notice of appeal is filed out of time and no leave to file it out of time is demonstrated, there is no valid appeal upon which stay pending appeal can be granted.
Court orders
#- 1.The application dated 18/08/2020 is dismissed with costs to the respondent
- Jurisdiction invoked
- Sections 1A, 1B and 63(c) and (e) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hellen Auma Ojuok v Mary Omollo Odongo & another [2021] KEELC 3397 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3397/eng@2021-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.