Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedHoma Bay ELC Appeal - Notice of Motion dated 18th October 2021 (arising from Homa Bay Chief Magistrate's Court Environment and Land Case No. 26 of 2020)· [2022] KEELC 1068 (KLR)

Lynette Adhiambo Oteng v KOJ [2022] KEELC 1068 (KLR)

Environment and Land Court of Kenya
28 February 2022
GOG.M.A Ong'ondo
970 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court halted a land eviction pending appeal, but only after the appellant paid Kshs. 50,000 security within 30 days.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Homa Bay (G.M.A Ong'ondo, J) on a notice of motion dated 18th October 2021 brought by the appellant, Lynette Adhiambo Oteng, under section 13(7) of the Environment and Land Court Act, 2015, seeking stay of execution of the judgment and decree of Hon. J. S. Wesonga in Homa Bay Chief Magistrate's Court Environment and Land Case No. 26 of 2020 delivered on 20th September 2021, pending her intended appeal. The applicant argued that her appeal was arguable, that she would suffer substantial loss as an innocent purchaser for value of the suit land, LR No. Kanyada/Kanyango/4788, and that the appeal would be rendered nugatory if execution proceeded. The respondent opposed through grounds of opposition and submissions, relying on Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 and the Kiplangat Kotut case, describing the application as an abuse of process aimed at delaying execution. The court found triable issues of trespass, innocent purchase for value and fraud in the memorandum of appeal, noted the application was brought without unreasonable delay, and held that preservation orders under section 13(7)(a) of the ELC Act include stay of execution to preserve the subject matter of the appeal. Applying the Butt and Moi High School Kabarak decisions, the court allowed the application on 28th February 2022, granting stay of execution conditional on the applicant depositing security of Kshs. 50,000/- within 30 days, failing which the stay would lapse, with costs of the application to abide the appeal.

Key legal issues

#
01

Whether the conditions for stay of execution pending appeal were met

Holding

The application was allowed; the stay was granted subject to the applicant depositing security of Kshs. 50,000/- within 30 days, failing which the stay lapses

Reasoning

The court found triable issues including trespass, innocent purchase for value and fraud arising in the memorandum of appeal, so the appeal had to be heard on merits. The application was mounted without unreasonable delay, and the court has discretion on security, which no person is exempted from furnishing. Preservation orders under section 13(7)(a) of the ELC Act include stay of execution to preserve the subject matter of the appeal.

p. 2
02

Whether the appeal would be rendered nugatory absent a stay

Holding

The possible rendering of the appeal nugatory was a relevant circumstance favouring the grant of stay

Reasoning

The applicant alleged she was an innocent purchaser for value likely to be evicted from LR No. Kanyada/Kanyango/4788 if execution proceeded. The court noted the potential nugatory aspect of the appeal and the right of access to justice under Article 48, anchoring the applicant's undoubted right to pursue the appeal as recognised in the Butt case.

p. 2

Legal principles established

#
  • Stay of execution orders are intended to safeguard the subject matter of an appeal pending resolution of contested issues
  • Preservation orders under section 13(7)(a) of the ELC Act encompass stay of execution of a judgment pending appeal
  • No person is exempted from furnishing security for due performance of a decree

Court orders

#
  1. 1.Stay of execution of the judgment and decree delivered by Hon. J. S. Wesonga in Homa Bay Chief Magistrate's Court Environment and Land Case No. 26 of 2020 granted
  2. 2.The applicant to deposit security of Kshs. 50,000/- in court within 30 days, failing which the stay order shall lapse without further orders
  3. 3.Costs of the application to abide the appeal

Authorities

#

Legislation

  • Environment and Land Court Actsection 13(7) and section 13(7)(a)
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Constitution of Kenya, 2010Article 48

Cases cited (4)

  • Kiplangat Kotut-vs-Rose Jepor Kipngok
    (2015) eKLR
  • Butt-vs-Rent Restriction Tribunal
    (1979) eKLR
  • Doshi Iron Mongers Limited-vs-Kenya Revenue Authority and another
    (2020) eKLR
  • Board of Governors, Moi High School Kabarak and another-vs-Malcolm Bell
    (2013) eKLR
On appeal from
Homa Bay Chief Magistrate's Court
Environment and Land Case No. 26 of 2020
Jurisdiction invoked
Section 13(7) of the Environment and Land Court Act, 2015

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Lynette Adhiambo Oteng v KOJ [2022] KEELC 1068 (KLR)", Case Analysis (2022). Homa Bay ELC Appeal - Notice of Motion dated 18th October 2021 (arising from Homa Bay Chief Magistrate's Court Environment and Land Case No. 26 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1068/eng@2022-02-28

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