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ELCPartially AllowedHoma Bay ELC (appeal) – Notice of Motion dated October 5, 2021 (arising from Homa Bay Chief Magistrate's Court Land Case No. 60 of 2019)· [2022] KEELC 2437 (KLR)

Simon v Adel (Environment and Land Appeal E005 of 2021) [2022] KEELC 2437 (KLR)

Environment and Land Court
28 April 2022
1,259 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 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

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Executive summary

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By a Notice of Motion dated October 5, 2021 brought under, among others, Order 42 Rule 6(1) of the Civil Procedure Rules, 2010, the applicant Michael Ochoo Simon sought a stay of execution of the decree in Homa Bay Chief Magistrate's Court Land Case No. 60 of 2019, in which judgment had been entered in favour of the respondent Salmon Kwanya Adel, pending the hearing and determination of his intended appeal, together with costs of the application to abide the appeal. The applicant argued that execution would render him and his family, who depend on the suit land LR No. Kanyada/Kalanya-Kanyango/3129, homeless and render the appeal nugatory. The respondent opposed through grounds of opposition, contending that the applicant had not met the legal threshold nor offered security, and proposed a deposit of Kshs 200,000 as security. Counsel filed written submissions. The court framed a single issue: whether the applicant had satisfied the Order 42 Rule 6 conditions of substantial loss, absence of unreasonable delay, and security. It found substantial loss likely given the risk of eviction from the applicant's only place of abode; the 26-day delay was not unreasonable; security was required but its form was discretionary; and the appeal was arguable, disclosing triable issues of jurisdiction and adverse possession. Applying Kenya Shell v Kibiru, Doshi Iron Mongers and Butt v Rent Restriction Tribunal, the court granted the stay, conditioned on the applicant depositing security of Kshs 50,000 or equivalent within 30 days, failing which the stay lapses, with costs of the application to abide the appeal.

Key legal issues

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01

Substantial loss

Holding

Likelihood of substantial loss established where the applicant faces eviction from the suit land, his only place of abode

Reasoning

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.

p. 2
02

Unreasonable delay

Holding

A 26-day delay in filing the application was not unreasonable

Reasoning

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.

p. 3
03

Security for due performance of the decree

Holding

Security is mandatory but its form and amount are discretionary; fixed at Kshs 50,000/- within 30 days, failing which stay lapses

Reasoning

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.

p. 3
04

Arguability of the appeal

Holding

The appeal is arguable, disclosing triable issues including jurisdiction and adverse possession

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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. 3.Costs of the application to abide the appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1)
  • Civil Procedure Rules, 2010Order 42 Rule 7
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Civil Procedure Rules, 2010Order 50 Rules 1, 2, 3, 4 and 8
  • Constitution of Kenya, 2010Article 10(2)(b)
  • Environment and Land Court Act, 2015Section 13(7)(a)
  • Environment and Land Court Practice Directions, 2014Practice Direction number 33

Cases cited (7)

  • James Wangalwa and another v Agnes Naliaka Cheseto
    (2012) eKLR
  • Absolom Dova v Tarbo Transporters
    (2013) eKLR
  • Jaber Mohsen Ali and another v Priscillah Boit and another
    E & L No. 200 of 2012 (2014) eKLR
  • Kiplagat Kotut v Rose Jebor Kipngok
    (2015) eKLR
  • Kenya Shell Limited v Kibiru
    (1986) KLR 410
  • Doshi Iron Mongers Ltd v Kenya Revenue Authority and another
    (2020) eKLR
  • Butt v Rent Restriction Tribunal
    (1979) eKLR
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

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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, "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.