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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 27th October 2021, filed 28th October 2021, arising from an intended appeal against Mbita SRM's Court Land Case No. 17 of 2019)· [2022] KEELC 1943 (KLR)

Paulina Auma Akoko v Samson Nyanja Akoko [2022] KEELC 1943 (KLR)

Environment and Land Court
19 January 2022
1,903 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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Kenya's Environment and Land Court paused enforcement of a land judgment and froze the property's status, because the losing party was appealing and building on the land.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Homa Bay (G M A Ongondo, J) on a Notice of Motion dated 27th October 2021 by Paulina Auma Akoko, the appellant in an intended appeal against the judgment of the Senior Resident Magistrate, Hon. N.N Moseti, delivered on 13th October 2021 in Mbita SRM's Court Land Case No. 17 of 2019, dismissing her claim over L.R L/Lambwe West 'B'/375. She sought stay of execution pending appeal and an injunction restraining the respondent, Samson Nyanja Akoko, from interfering with the suit property, arguing the appeal had overwhelming chances of success and would be rendered nugatory as the respondent was fencing and building on the land. The respondent opposed, contending there was no arguable appeal, no substantial loss, no security offered, and that the application was designed to deny him the fruits of his judgment. Parties filed written submissions. The court applied Order 42 Rule 6(2) conditions. It found the applicant would suffer substantial loss given the ongoing construction; the fourteen-day delay was not inordinate; the appeal, already admitted, disclosed triable issues including proprietorship, fraud and trust; and security was required, fixed as deposit of the original title deed within seven days. Applying Giella v Cassman Brown and Ogada v Mollin, the court preferred a status quo order to the injunction sought. The application was allowed: stay of execution granted pending appeal; status quo imposed on both parties; title deed to be deposited as security failing which the stay lapses; costs in the appeal.

Key legal issues

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01

Substantial loss for stay of execution

Holding

The applicant demonstrated likelihood of substantial loss because the respondent was fencing and erecting a permanent structure on the suit land in execution of the judgment

Reasoning

The court examined the application grounds, the respondent's replying affidavit and submissions, noting both parties acknowledged the ongoing construction. Given the character of the activities on the land, execution would render the appeal nugatory unless stay was granted, satisfying the Order 42 Rule 6(2) condition of substantial loss.

p. 2
02

Delay in bringing the application

Holding

The 14-day delay between the judgment (13 October 2021) and the application (28 October 2021) was not inordinate and inexcusable

Reasoning

Applying the principle attributed to Apaloo JA in Philip Chemwolo, the court weighed the delay against the circumstances of the matter and found that two weeks was reasonable, so delay did not disqualify the applicant from the stay orders sought.

p. 2
03

Security for due performance of the decree

Holding

Security was required and fixed as deposit of the original title deed in court within seven days, on pain of the stay lapsing

Reasoning

Relying on Doshi Iron Mongers Ltd v KRA, the court held no person is exempt from furnishing security and that the court has unfettered discretion over its nature. It tailored security as deposit of the title deed, linking lapse of stay to non-compliance.

p. 2
04

Injunctive relief versus status quo

Holding

Rather than the injunction sought, a status quo order was the appropriate interim preservation measure

Reasoning

Guided by Giella v Cassman Brown and Ogada v Mollin, and exercising its mandate under section 13(7)(a) of the Environment and Land Court Act, the court found a status quo order restraining both parties more suitable than the injunctive order in the circumstances of the pending appeal.

p. 2
05

Arguability of the appeal

Holding

The appeal was admitted and disclosed triable issues, including proprietorship and allegations of fraud and trust

Reasoning

By dint of the draft memorandum of appeal, the court noted it had admitted the appeal on 23 November 2021, identifying triable issues on proprietorship of the two parcels and alleged fraud and trust, supporting preservation of the suit property pending hearing.

p. 2

Legal principles established

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  • A 14-day delay in filing a stay application, judged against surrounding circumstances, is not inordinate and inexcusable
  • No person, including a statutory body, is exempt from providing security for the performance of a decree, and the court has absolute discretion over the nature of security
  • Where activities on disputed land are ongoing, the applicant is likely to suffer substantial loss unless stay is granted
  • A status quo order may be granted in lieu of an injunction as an interim preservation measure

Court orders

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  1. 1.Stay of execution of the judgment rendered on 13th October 2021 in Mbita SRM's Court Land Case number 17 of 2019 granted pending the hearing and determination of the appeal
  2. 2.Status quo order over the suit property: the respondent shall not continue to erect and complete any permanent structure on the suit property and the applicant shall not sell or dispose of the suit property or any part thereof pending appeal
  3. 3.The applicant to deposit the original title deed in court within seven (7) days as security for due performance of the decree, failing which the stay shall lapse
  4. 4.Costs of the application to be costs in this appeal
On appeal from
Mbita Senior Resident Magistrate's Court
Land Case No. 17 of 2019
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 40(1) and (2) of the Civil Procedure Rules, 2010; section 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, "Paulina Auma Akoko v Samson Nyanja Akoko [2022] KEELC 1943 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 27th October 2021, filed 28th October 2021, arising from an intended appeal against Mbita SRM's Court Land Case No. 17 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1943/eng@2022-01-19

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