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ELCPartially AllowedNot stated in judgment (appeal from Mavoko MCELC No. E003 of 2021)· [2022] KEELC 2064 (KLR)

Jane Achieng Odundo v Steve Harrison Weda & another [2022] KEELC 2064 (KLR)

Environment and Land Court
24 January 2022
COChristine Ochieng
1,952 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court paused execution of a lower court order, letting a long-time land occupier keep possession while her appeal is heard.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) on a Notice of Motion dated 23 July 2021 by the Appellant, Jane Achieng Odundo, seeking stay of execution of a ruling delivered on 14 July 2021 by Hon. H. Onkwani, Principal Magistrate, in Mavoko MCELC No. E003 of 2021, pending appeal. The lower court had restrained the Appellant from accessing a parcel she claims as Plot No. 500/272 Waswa Estate Lukenya Ranch, which the Respondents describe as Mavoko Town Block 3/6252, of which they say they are registered proprietors since 2020. The Respondents opposed, contending the Appellant was a stranger to the suit, was trespassing, and that she should deposit Kshs. 1,500,000 as security. The court framed a single issue: whether the Appellant was entitled to stay of execution pending appeal. Applying Order 42 Rule 6(2) and the Butt v Rent Restriction Tribunal principles, the court found the application was made without unreasonable delay, that the Appellant had occupied the land since 1996 under Letters of Allotment, had constructed a permanent house, and had an existing dispute and Decree against the Respondents' predecessor in title, raising triable issues. She was found to be the disadvantaged party, and refusing stay would render the appeal nugatory. Security was held unnecessary as the subject matter was immovable property. The application was allowed and costs were made costs in the cause.

Key legal issues

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01

Whether the Appellant met the conditions for stay of execution pending appeal under Order 42 Rule 6(2)

Holding

The court found the threshold met: the application was made without unreasonable delay, substantial loss was demonstrated, and security was unnecessary for an immovable property dispute.

Reasoning

The court applied Order 42 Rule 6(2) and the Butt v Rent Restriction Tribunal principles. It noted the Appellant had been on the land since 1996, held Letters of Allotment, had constructed a permanent structure, and had an existing dispute with the Respondents' predecessor in title. These triable issues meant she was the disadvantaged party, and refusing stay would render the appeal nugatory and infringe her right to a fair hearing.

p. 3
02

Whether security for due performance of the decree was required

Holding

The court held security unnecessary because the subject matter was immovable property, not a liquidated claim.

Reasoning

While Order 42 Rule 6(2)(b) requires security, the court agreed with the Appellant that the subject matter was not a liquidated claim. Since the dispute concerned immovable property in the Appellant's possession, an order for security for due performance would serve no purpose.

p. 3

Legal principles established

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  • A stay of execution must be granted so that an appeal is not rendered nugatory, absent an overwhelming hindrance
  • Filing an appeal alone does not operate as a stay of execution

Court orders

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  1. 1.An order of stay of execution of the ruling and order issued against the Appellant/Applicant, delivered by Honourable H. Onkwani, Principal Magistrate on the 14th July, 2021, granted pending the hearing and determination of the Appeal filed herein
  2. 2.Costs of the application be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (7)

  • Nairobi Women's Hospital v Purity Kemunto
    (2018) eKLR
  • Sarah N. Sakwa v Elizabeth Wamwanyi t/a Namukhosi Ltd & Another
    (2017) eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • James David Gathuri v Elaine Njeri & 8 Others
    (2020) eKLR
  • Charles Kariuki Njuri v Francis Kimaru Rwara (Suing as Administrator of Estate of Rwara Kimaru alias Benson Rwara Kimaru (deceased)
    (2020) eKLR
  • Patrick Kithaka Borici & Another v Shadrack Nyaga Njeru
    (2019) eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
On appeal from
Principal Magistrate's Court, Mavoko
MCELC No. E003 of 2021
Jurisdiction invoked
Appellate/stay jurisdiction under Order 42 Rule 6 of the Civil Procedure Rules over an appeal from the Magistrates' Court

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, "Jane Achieng Odundo v Steve Harrison Weda & another [2022] KEELC 2064 (KLR)", Case Analysis (2022). Not stated in judgment (appeal from Mavoko MCELC No. E003 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2064/eng@2022-01-24

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