Jared Ajina Okwach & another v Victoria Achieng Yongo & another [2021] KEELC 4688 (KLR)
The bottom line
#A Migori court paused execution of a land judgment because the losing party showed real loss, filed reasonably fast, and agreed to deposit Kshs. 200,000 as security.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant would suffer substantial loss if the decree is executed
Substantial loss was established because the suit parcels form the applicant's source of income and livelihood, and execution could result in further development, acquisition of proprietorship by the respondents and reversion of title.
The court applied New Stanley Hotel and Blue Shield Insurance on hardship. The applicant ploughs the suit parcels as his livelihood. Although the respondents have substantially developed the land, if stay is not granted they may further develop and acquire proprietorship, causing the applicant substantial loss, as envisaged in the Muema, Gichine and Blue Shield Insurance authorities.
Whether the approximately forty-five day delay in filing the application was inordinate
The delay was not inordinate and the applicant should be allowed to have his intended appeal heard on its merits.
Judgment was delivered on 29 October 2019, notice of appeal filed 11 November 2019 and the motion on 13 December 2019, a delay of about forty-five days. Relying on Philip Chemwolo vs Augustine Kubende, the court held that delay judged against the facts and circumstances was not inordinate, in the spirit of Articles 25(c), 48 and 50(1) of the Constitution.
Whether the applicant should provide security for the due performance of the decree
Security was directed in the sum of Kshs. 200,000/= to be deposited within thirty days, failing which the stay lapses.
Citing Doshi Iron Mongers vs Kenya Revenue Authority, the court reiterated that no party is exempt from furnishing security. Exercising its discretion under sections 1A, 1B, 3 and 3A of the Civil Procedure Act and sections 3 and 13(7)(a) of the ELC Act, the court granted stay conditioned on security to preserve the suit property.
Legal principles established
#- The three conditions in Order 42 Rule 6(2) for stay of execution pending appeal - substantial loss, reasonable delay and security - are cumulative and must all be satisfied.
- A period of approximately forty-five days' delay in bringing a stay application, judged against the surrounding circumstances, is not inordinate.
- No party is exempted from providing security for the due performance of a decree.
Court orders
#- 1.Stay of execution as per prayer number 3 sought in the motion is granted
- 2.The applicant shall deposit security in the sum of Kshs. 200,000/= in court within thirty (30) days, in default of which the stay orders shall lapse automatically
- Jurisdiction invoked
- Order 42 Rules 2, 3 & 4 and Order 51 of the Civil Procedure Rules 2010; Section 63(e) of the Civil Procedure Act (Chapter 21, Laws of Kenya); Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Sections 3 and 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, "Jared Ajina Okwach & another v Victoria Achieng Yongo & another [2021] KEELC 4688 (KLR)", Case Analysis (2021). Not stated in the judgment (Suna West/Wasweta I/15650 and 15644 land matter, Migori ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4688/eng@2021-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.