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ELCAllowedKisumu ELC Appeal (from Kisumu CM ELC No. 447 of 2018) - Application dated 3/11/2020· [2021] KEELC 3805 (KLR)

Hezekiah Ong’undi v Daniel Ojijo Odhiambo [2021] KEELC 3805 (KLR)

Environment and Land Court of Kenya at Kisumu
24 March 2021
AOANTONY OMBWAYO
2,635 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kisumu halted enforcement of a Kshs. 6.4 million judgment because the defendant claimed he was never served with court summons.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 3 November 2020 by Hezekia Ong’undi, the appellant in an appeal against the ruling of Hon. P.N. Gesora, Chief Magistrate, delivered on 27 October 2020 in Kisumu CM ELC No. 447 of 2018, which dismissed his application to set aside an ex parte judgment of Hon. R.K. Ondieki, SPM, dated 10 January 2020 and to be granted leave to defend the suit. The applicant sought stay of execution of that judgment pending appeal, complaining that he was never served with summons to enter appearance or with the pleadings, that no notice of entry of judgment was served, and that the respondent had commenced execution by seeking to commit him to civil jail for a decretal sum of Kshs. 6,406,374.10/-. The respondent opposed, asserting valid service, absence of any defence, and sought security of half the decretal amount as a condition for any stay. Applying Order 42 Rule 6 of the Civil Procedure Rules and the principles in Butt v Rent Restriction Tribunal, James Wangalwa v Agnes Naliaka Cheseto and RWW v EKW, the court found no inordinate delay (the appeal and application were filed about eight days after the ruling), found sufficient cause in the applicant's right to be heard on his allegations of lack of service and being condemned unheard, and held that substantial loss is the cornerstone of stay. The court granted stay of execution on condition that the applicant deposits half the decretal sum in court, with costs of the application to the applicant. The judgment was delivered electronically due to COVID-19 restrictions.

Key legal issues

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01

Whether there was unreasonable delay in filing the application for stay

Holding

The appeal and application were filed approximately 8 days after the ruling; there was no inordinate delay.

Reasoning

The ruling was delivered on 27/10/2020, the memorandum of appeal was filed on 4/11/2020 and the application for stay on the same date. The court found this did not constitute inordinate delay, satisfying the first condition under Order 42 Rule 6(2).

p. 3
02

Whether the applicant demonstrated substantial loss

Holding

The court found sufficient cause in the applicant's right to be heard on allegations that he was condemned unheard and not served with summons.

Reasoning

The court applied the principle that substantial loss is the cornerstone of stay. Considering the financial capacity of both parties to refund the decretal sum, and the applicant's contention that he was never served with summons to enter appearance and was condemned unheard, the court found sufficient cause to grant stay.

p. 3
03

Security for the due performance of the decree

Holding

Stay granted on condition that the applicant deposits half the decretal sum in court.

Reasoning

The third condition under Order 42 Rule 6(2)(b) is the furnishing of security. The respondent had himself proposed a deposit of half the decretal amount. The court adopted this by conditioning the stay on the applicant depositing half the decretal sum in court.

p. 3

Legal principles established

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  • The conditions for grant of stay of execution pending appeal are that the application be filed without unreasonable delay, evidence of substantial loss, and furnishing of security as ordered by the court.
  • Substantial loss is the cornerstone of an application for stay of execution pending appeal.

Court orders

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  1. 1.Stay of the execution and/or enforcement of the judgment delivered by Honourable R.K. Ondieki, SPM dated 10th January 2020 in Kisumu Chief Magistrates ELC No. 447 of 2018 - Daniel Ojijo Odhiambo v Hezekiah Ong’undi, on condition that the applicant deposits half the decretal sum in court
  2. 2.Costs of the application in the appeal to the applicant

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 21(1), 25(c), 47(1), 48, 50, 159(2)
  • Civil Procedure ActOrder 5 (service of summons)
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2); Order 22 Rule 6

Cases cited (3)

  • Butt vs. Rent Restriction Tribunal
    [1979]
  • James Wangalwa & Another vs. Agnes Naliaka Cheseto
    [2012] eKLR
  • RWW vs. EKW
    [2019] eKLR
On appeal from
Chief Magistrate's Court, Kisumu
Kisumu CM ELC No. 447 of 2018
Jurisdiction invoked
Order 42 Rule 6 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, "Hezekiah Ong’undi v Daniel Ojijo Odhiambo [2021] KEELC 3805 (KLR)", Case Analysis (2021). Kisumu ELC Appeal (from Kisumu CM ELC No. 447 of 2018) - Application dated 3/11/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3805/eng@2021-03-24

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