Simon v Adel (Environment & Land Case OO5 of 2021) [2022] KEELC 50 (KLR)
The bottom line
#The Environment and Land Court in Homa Bay halted eviction proceedings against a landowner because executing the judgment before his appeal would leave his family homeless.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
Substantial loss was established because the applicant faces eviction from the suit land, his only place of abode
The court noted grounds 2 and 4 of the application and paragraphs 2 and 6 of the supporting affidavit showing the applicant and his family risk being rendered homeless if the decree is executed, a scenario recognised in Kenya Shell Limited v Kibiru as constituting substantial loss.
Unreasonable delay
A 26-day delay in filing the application was not unreasonable
Guided by Article 10(2)(b) of the Constitution (equity aids the vigilant, not the indolent) and Order 50 Rules 1,2,3,4 and 8 of the Civil Procedure Rules, the court held that the application brought twenty-six days after the trial judgment was, in the prevailing circumstances, made without unreasonable delay.
Security for due performance of the decree
Security is mandatory but its form and quantum lie in the court's discretion; Kshs. 50,000 was fixed
Relying on Doshi Iron Mongers Ltd v Kenya Revenue Authority, the court held that no person is exempt from providing security, but the form of security is discretionary. The court fixed Kshs. 50,000 or equivalent security, rejecting the respondent's proposal of Kshs. 200,000, and made the stay conditional on payment within 30 days.
Arguability of the appeal
The appeal was clearly arguable given triable issues including jurisdiction and adverse possession
The court found the memorandum of appeal disclosed triable issues, including jurisdiction and adverse possession, supporting the exercise of discretion so as not to render a successful appeal nugatory, per Butt v Rent Restriction Tribunal.
Legal principles established
#- Stay of execution requires substantial loss, absence of unreasonable delay, and provision of security as the court orders
- A stay should be granted where its refusal would render a presumably arguable appeal nugatory
Court orders
#- 1.Stay of execution of the decree issued in Homa Bay Chief Magistrate's Court Land Case number 60 of 2019 pending the hearing and determination of the instant appeal is granted
- 2.The applicant shall deposit security for the performance of the decree in the sum of Kenya Shillings fifty thousand only (Kshs.50,000/-) or relevant security duly valued in the said amount within 30 days, failing which the stay orders shall lapse without further order of the court
- 3.The costs of the application to abide this appeal
- On appeal from
- Homa Bay Chief Magistrate's Court
- Land Case No. 60 of 2019
- Jurisdiction invoked
- Order 42 Rule 6(1) of the Civil Procedure Rules, 2010; Section 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, "Simon v Adel (Environment & Land Case OO5 of 2021) [2022] KEELC 50 (KLR)", Case Analysis (2022). Homa Bay ELC Appeal (stay application dated 5th October 2021, arising from Homa Bay Chief Magistrate's Court Land Case No. 60 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/50/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.