Simon v Adel (Environment and Land Appeal E005 of 2021) [2022] KEELC 2437 (KLR)
The bottom line
#The Environment and Land Court in Homa Bay paused enforcement of a land judgment because the losing party risked losing his only home, on condition he deposits Kshs 50,000.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
Likelihood of substantial loss established where the applicant faces eviction from the suit land, his only place of abode
The court relied on grounds 2 and 4 of the application and paragraphs 2 and 6 of the supporting affidavit showing the applicant and his family depend on the suit land and risk being rendered homeless if the decree is executed, consistent with the Kenya Shell v Kibiru approach.
Unreasonable delay
A 26-day delay in filing the application was not unreasonable
Guided by Article 10(2)(b) of the Constitution (equity aids the vigilant, not the indolent) and Order 50 Rules 1,2,3,4 and 8, the court assessed the 26-day interval between judgment and the application and found the delay not unreasonable in the circumstances of the application.
Security for due performance of the decree
Security is mandatory but its form and amount are discretionary; fixed at Kshs 50,000/- within 30 days, failing which stay lapses
Adopting Doshi Iron Mongers, the court held no one is exempt from giving security, but the form is for the court's discretion, rejecting the respondent's proposed Kshs 200,000 deposit.
Arguability of the appeal
The appeal is arguable, disclosing triable issues including jurisdiction and adverse possession
The court considered the memorandum of appeal and found triable issues of jurisdiction and adverse possession, reinforcing that the appeal should not be prevented from being heard, consistent with the Butt v Rent Restriction Tribunal principle.
Legal principles established
#- The three conditions for stay of execution under Order 42 Rule 6(1) are substantial loss, absence of unreasonable delay, and provision of security as the court orders
- No person is exempt from providing security for due performance of a decree, but the form of security is within the court's discretion
- Stay should not be granted where its effect would be to render a successful appeal nugatory
Court orders
#- 1.Stay of execution of the decree issued in Homa Bay Chief Magistrate's Court Land Case Number 60 of 2019 pending the hearing and determination of the appeal, granted
- 2.Applicant to deposit security for the performance of the decree in the sum of Kshs. 50,000/- or relevant security duly valued in that amount within 30 days, failing which the stay orders lapse
- 3.Costs of the application to abide the appeal
- On appeal from
- Homa Bay Chief Magistrate's Court
- Land Case No. 60 of 2019
- Jurisdiction invoked
- Section 13(7)(a) of the Environment and Land Court Act, 2015; Order 42 Rule 6(1) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon v Adel (Environment and Land Appeal E005 of 2021) [2022] KEELC 2437 (KLR)", Case Analysis (2022). Homa Bay ELC (appeal) – Notice of Motion dated October 5, 2021 (arising from Homa Bay Chief Magistrate's Court Land Case No. 60 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2437/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.