Evalyne Mande Oloo & Edwin Odhiambo Siala v County Government of Siaya & National Land Commission (Environment & Land Case 59 of 2021) [2022] KEELC 2167 (KLR)
The bottom line
#A Siaya court refused to pause an eviction pending appeal because the applicant proved nothing, delayed 21 months, and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated substantial loss
The applicant failed on this limb; it did not particularize the loss and damage beyond bare assertions and unproven quantification in submissions
The applicant claimed the suit property was a public market and quantified loss at Kshs.10,000,000/= only in submissions. The court held that substantial loss must be demonstrated by evidence, not submissions, citing Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, and that mere statements of prejudice do not suffice.
Whether the application was brought without undue delay
The motion failed on this limb; it was filed 21 months after judgment with no explanation for the delay
The motion was filed 21 months after the judgment of 30/01/2020. The application and supporting affidavit contained no material facts explaining the delay, and the court considered that period inordinately long under Order 42 Rule 6.
Whether the applicant furnished security
The applicant failed on this limb; no security was furnished, though it is a mandatory requirement
Order 42 Rule 6(2)(b) is couched in mandatory terms requiring an applicant for stay to furnish security. The applicant offered none for the court's consideration, drawing on Equity Bank Ltd v Taiga Adams Company Ltd which stressed that all conditions must be met.
Whether the motion had been overtaken by events
The motion failed on this additional ground; the eviction orders had already been executed before the motion was heard
The order of 1/10/2021 directing the O.C.S. Siaya to execute the eviction orders was executed on or before 1/11/2021, and the applicant had been evicted. Relying on Jane Jeptoo Sawe, the court held that granting stay would serve no useful purpose.
Legal principles established
#- A mere assertion of prejudice or public character of property is insufficient; an applicant for stay must particularize the substantial loss it will suffer
- Submissions cannot take the place of evidence in an application for stay of execution
- Furnishing security is a mandatory condition under Order 42 Rule 6(2)(b) for grant of stay of execution pending appeal
- A stay application overtaken by events cannot be granted as it would serve no useful purpose
Court orders
#- 1.The notice of motion dated 25/10/2021 is hereby dismissed
- 2.Costs to the plaintiffs
- Jurisdiction invoked
- Article 159 of the Constitution; Section 18 of the Government Proceedings Act; Sections 1A and 3A of the Civil Procedure Act; Orders 42 Rule 6 and 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evalyne Mande Oloo & Edwin Odhiambo Siala v County Government of Siaya & National Land Commission (Environment & Land Case 59 of 2021) [2022] KEELC 2167 (KLR)", Case Analysis (2022). Notice of motion dated 25/10/2021 (arising from plaint dated 16/09/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2167/eng@2022-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.