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ELCAllowedNot stated in the judgment (Suna West/Wasweta I/15650 and 15644 land matter, Migori ELC)· [2021] KEELC 4688 (KLR)

Jared Ajina Okwach & another v Victoria Achieng Yongo & another [2021] KEELC 4688 (KLR)

Environment and Land Court of Kenya
19 January 2021
2,064 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Migori (G.M.A. Ongondo, J) on a notice of motion dated 13th December 2019 by the 2nd defendant, George Otieno Yongo, acting in person, seeking stay of execution of the judgment delivered on 29th October 2019 pending his intended appeal, under Order 42 and Order 51 of the Civil Procedure Rules and section 63(e) of the Civil Procedure Act. The plaintiff and 1st respondent opposed through grounds of opposition and a replying affidavit, contending the application was premature, incompetent, offended Order 9 Rule 9 on acting in person, and that the conditions of substantial loss, reasonable delay and security were unmet. The court adopted the two issues framed in the respondents' submissions: whether the Order 42 conditions were satisfied and costs. On substantial loss, the court found the suit parcels (Suna West/Wasweta I/15650 and 15644) were the applicant's source of livelihood and that execution could cause him substantial loss. On delay, the roughly forty-five day gap between judgment and the motion was held not inordinate, following Philip Chemwolo vs Augustine Kubende. On security, the court held no party is exempt and conditioned the stay on a deposit. The court allowed the motion, granting stay of execution on condition that the applicant deposits Kshs. 200,000/= as security within thirty days, failing which the stay lapses automatically. No express costs order was recorded.

Key legal issues

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01

Whether the applicant would suffer substantial loss if the decree is executed

Holding

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.

Reasoning

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.

p. 3
02

Whether the approximately forty-five day delay in filing the application was inordinate

Holding

The delay was not inordinate and the applicant should be allowed to have his intended appeal heard on its merits.

Reasoning

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.

p. 3
03

Whether the applicant should provide security for the due performance of the decree

Holding

Security was directed in the sum of Kshs. 200,000/= to be deposited within thirty days, failing which the stay lapses.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Stay of execution as per prayer number 3 sought in the motion is granted
  2. 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

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rules 2, 3 & 4; Order 42 Rule 6(2); Order 51; Order 51 Rule 16; Order 50 Rule 8; Order 9 Rule 9
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 63(e); Sections 1A, 1B, 3 and 3A
  • Environment and Land Court Act, 2015 (2012)Sections 3 and 13(7)(a)
  • Environment and Land Court Practice Directions, 2014Practice Direction number 33 (a) and (b)
  • Constitution of Kenya, 2010Articles 10(2)(b), 25(c), 48 and 50(1)

Cases cited (11)

  • Dr. G. N. Muema P/A Mt. View Maternity & Nursing Home vs Miriam Maalim Bishar & Another (2018) eKLR
    (2018) eKLR
  • Ndegwa Gichine vs Sicily Warware Njira (2028) eKLR
    (2028) eKLR
  • Masisi Mwita vs Damaris Wanjiku Njeri (2016) eKLR 417
    (2016) eKLR 417
  • New Stanley Hotel Ltd vs Arcade Tobacconist Ltd (1980) KLR 757
    (1980) KLR 757
  • Shahmad vs Shamji Bros and another (1957) EA 438
    (1957) EA 438
  • Blue Shield Insurance Company Ltd vs Mahinda (2009) KLR 551
    (2009) KLR 551
  • Philip Chemwolo and another vs Augustine Kubende (1982-88) KAR 103
    (1982-88) KAR 103
  • Doshi Iron Mongers Ltd vs Kenya Revenue Authority and another (2020) eKLR
    (2020) eKLR
  • Malindi Law Society of Kenya vs Law Society of Kenya Nairobi Branch and 5 others (2017) eKLR
    (2017) eKLR
  • Board of Governors Moi High School Kabarak and another vs Malcolm Bell (2013) eKLR
    (2013) eKLR
  • Trust Bank Ltd vs Ajay Shah and 3 others (2012) eKLR
    (2012) eKLR
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

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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, "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.