Rhoda Awuor Oduo v Monica Atieno Ouma & another [2022] KEELC 1653 (KLR)
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
#Key legal issues
#Substantial loss
Execution of the decree transferring the suit property would cause the applicant substantial loss as he depends on the land for his livelihood
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.
Delay in filing the application
The application, filed on 29th June 2021 shortly after the judgment of 15th June 2021, was brought with due promptitude
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).
Security for due performance
Stay was granted conditional on the applicant depositing Kshs.75,000 as security
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.
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.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.Costs of the application to abide the appeal
- 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
- 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.