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ELCPartially AllowedELC Case, Kitale (decree dated 21/05/2020; Application dated 09/03/2022)· [2022] KEELC 2383 (KLR)

Makanda v Omusolo (Environment & Land Case 165 of 2006) [2022] KEELC 2383 (KLR)

Environment and Land Court
27 June 2022
2,570 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner won court-ordered police protection to evict a holdover occupant, confirming appeals don't automatically stop eviction.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kitale (Fred Nyagaka, J) determined an application dated 09/03/2022 by Alfred Juma Makanda, the decree-holder in a land claim over LR Number Trans-Nzoia/Botwo/384, in which judgment was delivered on 21/05/2020 ordering the Defendant, Alfred O. Omusolo, to vacate within ninety days. The Applicant sought an order that the OCS Kitale Police Station provide security to enforce the decree, evict the Defendant and remove illegal structures, invoking Order 22 Rules 80, 82 and 83(7) of the Civil Procedure Rules. The Respondent opposed, asserting the decree had not been drawn, that a Notice of Appeal had been lodged, and that the application was not made in good faith. The court framed two issues: merit and costs. It held that the legality of the Notice of Appeal was a matter for the Court of Appeal; that lodging a Notice of Appeal deemed an appeal filed, but filing an appeal creates no automatic stay, and the Respondent had never applied for stay under Order 42 Rule 6 - mere opposition to execution is not a stay application. The court found the cited Order 22 provisions irrelevant to eviction pursuant to judgment (as opposed to sale in realization) or inapplicable since no execution had been attempted or obstructed, and Rule 83(7) non-existent; yet Article 159(2)(d) and the court's inherent powers cured the technical citation errors. Holding the application to have been made in good faith, but noting no decree had been drawn, the court varied the substantive prayer and ordered police security for the eviction as and when the decree is executed, with the Defendant to pay the costs of the application and eviction, loaded onto the sum payable on execution.

Key legal issues

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01

Whether the application for security during eviction in execution of the decree was merited

Holding

The application was merited in substance; the OCS Kitale Police Station was ordered to provide security to enforce the decree as and when executed, with the original prayer varied

Reasoning

The court found the substantive prayer - provision of police security during eviction - to be made in good faith, since security during execution protects both parties. Although the cited Order 22 provisions were irrelevant or non-existent, Article 159(2)(d) cures such technical failures, and Section 3A of the Civil Procedure Act empowers the court to make just orders. However, execution could not take place before the decree was drawn, so the order operates prospectively, 'as and when it shall be executed'.

p. 3
02

Whether the pendency of an appeal justified refusal of the application

Holding

No - a Notice of Appeal deemed an appeal filed, but no automatic stay follows and the Respondent never applied for stay under Order 42 Rule 6

Reasoning

The court held that lodging a Notice of Appeal is deemed filing an appeal under Order 6 Rule 4, but under Order 42 Rule 6(1) and (2) an appeal does not operate as an automatic stay; the appellant must demonstrate substantial loss, absence of unreasonable delay, and offer security. The Respondent had made no such application, and opposing execution was not equivalent to seeking a stay.

p. 3
03

The competence of the Notice of Appeal

Holding

The legality or competence of the Notice of Appeal is not a matter within the jurisdiction of the ELC to determine

Reasoning

The Respondent contended the Notice of Appeal was lodged and paid for within time and that an erroneous endorsement was corrected. The court declined to rule on the competence of the Notice, holding that this is for the Court of Appeal to consider; it noted only that an appeal had been lodged, which sufficed to show an appeal existed.

p. 2

Legal principles established

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  • A Notice of Appeal lodged against a judgment suffices to show an appeal has been filed
  • Filing an appeal does not operate as an automatic stay of execution; a party seeking stay must apply under Order 42 Rule 6
  • Opposition to an application for execution is not equivalent to an application for stay of execution
  • Execution cannot take place before the decree is drawn
  • Citation of wrong or non-existent provisions does not render an application incurably defective, per Article 159(2)(d) and the court's inherent powers

Court orders

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  1. 1.The Officer Commanding Station (OCS), Kitale Police Station to provide security to enforce the Court decree dated 21/05/2020, as and when it shall be executed, and the officers to assist to evict the Defendant, his relatives, agents and or whoever claiming through him found in the subject parcel of land at the time of eviction, and remove all illegal structures erected in the suit property, being LR. Number Trans-Nzoia/Botwo/384
  2. 2.The Defendant to pay the costs of this Application and of eviction, to be loaded onto the total to be paid upon execution

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 80
  • Civil Procedure RulesOrder 22 Rule 82
  • Civil Procedure RulesOrder 22 Rule 83(7)
  • Civil Procedure RulesOrder 22 Rule 83
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 6 Rule 4
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Evidence Act, Chapter 80, Laws of KenyaSections 59 and 60
  • Constitution of Kenya, 2010Article 159(2)(d)
Jurisdiction invoked
Order 22 Rules 80, 82 and 83(7) of the Civil Procedure Rules; Section 3A and Section 3 of the Civil Procedure Act; Article 159(2)(d) of the Constitution of Kenya, 2010

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, "Makanda v Omusolo (Environment & Land Case 165 of 2006) [2022] KEELC 2383 (KLR)", Case Analysis (2022). ELC Case, Kitale (decree dated 21/05/2020; Application dated 09/03/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2383/eng@2022-06-27

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