Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment excerpt (ELC suit at Homa Bay)· [2022] KEELC 1653 (KLR)

Rhoda Awuor Oduo v Monica Atieno Ouma & another [2022] KEELC 1653 (KLR)

Environment and Land Court
31 January 2022
1,547 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Homa Bay court paused a land transfer judgment pending appeal, requiring only Kshs.75,000 security, because the appellant depends on the land for his livelihood.

What this practically means

#

Executive summary

#
The 2nd defendant, Willis Odhiambo Ouma, moved the Environment and Land Court at Homa Bay by notice of motion dated 28th June 2021 under Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Sections 7, 13, 19 and 26 of the Environment and Land Court Act, seeking stay of execution of the judgment of 15th June 2021 and decree of 24th June 2021, particularly the limb directing the Land Registrar to rectify the register of LR No. Kasipul/Kotieno Kokech/67 in favour of the plaintiff, Rhoda Awuor Oduo, pending an intended appeal to the Court of Appeal. The respondent opposed through grounds of opposition, asserting her entitlement to the fruits of judgment and noting the absence of security, and sought in the alternative a security deposit of Kshs.5,000,000. Both sides filed written submissions. Ongondo J adopted the sole issue of whether the applicant satisfied the Order 42 Rule 6(2) conditions. The court found substantial loss because the applicant depends on the suit property for his livelihood; the application was filed with due promptitude after the judgment; no party is exempt from providing security; and by dint of the filed notice and draft memorandum of appeal the applicant had an undoubted right to pursue the appeal, buttressed by constitutional rights of access to justice and fair hearing. The court allowed the application, granted stay of execution pending appeal, ordered costs of the application to abide the appeal, and directed the applicant to deposit Kshs.75,000 in court as security, failing which the stay lapses automatically.

Key legal issues

#
01

Substantial loss

Holding

Execution of the decree transferring the suit property would cause the applicant substantial loss as he depends on the land for his livelihood

Reasoning

The court found that a decree had been issued on 24th June 2021 and that if executed, the applicant, who depends on the suit property for livelihood, would suffer substantial loss. Substantial loss is the central condition under Order 42 Rule 6(2)(a) and its demonstrated likelihood justified the stay notwithstanding the respondent's vested right to the fruits of judgment.

p. 2
02

Delay in filing the application

Holding

The application, filed on 29th June 2021 shortly after the judgment of 15th June 2021, was brought with due promptitude

Reasoning

Applying the equitable principles in Article 10(2)(b) of the Constitution that delay defeats equity and equity aids the vigilant, the court compared the date of judgment with the filing date of the motion and concluded there was no inordinate delay. This satisfied the second condition for stay under Order 42 Rule 6(2).

p. 2
03

Security for due performance

Holding

Stay was granted conditional on the applicant depositing Kshs.75,000 as security

Reasoning

The court held that no party is exempt from furnishing security for due performance of a decree, relying on Doshi Iron Mongers v Kenya Revenue Authority. The quantum of security is a judicial discretion dependent on the circumstances; the respondent's proposal of Kshs.5,000,000 was not adopted, and Kshs.75,000 was fixed with the stay lapsing automatically on default.

p. 2

Legal principles established

#
  • No party is exempt from providing security for the due performance of a decree as a condition for stay of execution
  • A party with an arguable intended appeal has an undoubted right to pursue the appeal and should not be deprived of that right absent good reason

Court orders

#
  1. 1.Stay of execution of the judgment rendered on 15th June 2021 and the decree issued on 24th June 2021, including the limb directing the Land Registrar to rectify the register of LR No. Kasipul/Kotieno Kokech/67, pending the hearing and determination of the intended appeal to the Court of Appeal
  2. 2.Costs of the application to abide the appeal
  3. 3.The applicant to deposit in court Kshs.75,000 as security for the due performance of the decree, failing which the stay shall lapse automatically

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(2)(b), Order 42 Rule 6(4), Order 51 Rule 16
  • Environment and Land Court ActSections 7, 13, 19 and 26
  • Constitution of Kenya, 2010Articles 10(2)(b), 159(2)(d), 25(c), 48 and 50(1)

Cases cited (9)

  • Ndegwa Gichine vs Sicily Warware Njira
    2018 KLR
  • Butt vs Rent Restriction Tribunal
    (1979) eKLR 2010
  • Kwamboka Daphney vs Kithinji Joy and another
    (2021) eKLR
  • Kenya Shell Ltd vs Kibiru and Another
    (1986) KLR 410
  • Charles Kariuki Njuri vs Francis Kimaru Rwara (suing as Administrator of Estate of Rwara Kimaru alias Benson Rwara Kimaru (deceased)
    (2020) eKLR
  • Shamad vs Shamji Bros and another
    1957 EA 438
  • New Stanley Hotel Ltd vs Arcade Tobacconist Ltd
    (1980) KLR 757
  • Doshi Iron Mongers vs Kenya Revenue Authority and another
    (2020) eKLR
  • Philip Chemwolo and another vs Augustine Kubende
    (1986) eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010; Sections 7, 13, 19 and 26 of the Environment and Land Court Act, 2011

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Rhoda Awuor Oduo v Monica Atieno Ouma & another [2022] KEELC 1653 (KLR)", Case Analysis (2022). Not stated in the judgment excerpt (ELC suit at Homa Bay). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1653/eng@2022-01-31

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