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ELCPartially AllowedNot stated in the judgment (constitutional petition; application dated 17/05/2021, filed 18/05/2021)· [2022] KEELC 2975 (KLR)

Ochieng (Suing on his Own behalf and on behalf of:) & 112 others v Kabarak Farm Ltd & 23 others; County Government of Trans Nzoia & 9 others (Interested Party) (Environment & Land Petition 3 of 2017) [2022] KEELC 2975 (KLR)

Environment and Land Court
21 June 2022
1,998 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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 Kitale on an application dated 17/05/2021 and filed 18/05/2021 by the 6th Respondent/Applicant, an executor of the estate of the 6th Respondent in a constitutional petition, seeking a stay of execution of the court's judgment and decree of 03/03/2021 pending an intended appeal, under Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Rule 32 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The judgment had awarded the Petitioners Kshs. 1,500,000 for unlawful arrest, Kshs. 1,500,000 for malicious prosecution and Kshs. 3,000,000 for unlawful eviction. The application was unopposed, but the court held that an unopposed application does not automatically succeed and must be examined on its merits. It framed two issues: whether the criteria for stay pending appeal were met, and who should bear costs. Restating the Order 42 Rule 6 conditions (substantial loss, no unreasonable delay, security) and additional requirements from authority including Halal v Thornton & Turpin, the court found the applicant had failed to demonstrate an arguable appeal. Balancing the parties' interests, and noting the court had found the respondents' rights violated, it granted stay only on conditions: payment of half the decretal sums within thirty days, deposit of the balance in court within the same period, and filing of the record of appeal within sixty days, failing which the stay lapses. There was no order as to costs of the application.

Key legal issues

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01

Whether the criteria for stay of execution pending appeal were met

Holding

Stay was granted, but only on conditions: payment of half the decretal sum, deposit of the balance in court, and filing of the record of appeal within set timelines, failing which the stay lapses.

Reasoning

The court restated the Order 42 Rule 6 conditions: substantial loss, absence of unreasonable delay, and security for due performance. It added the requirement of demonstrating an arguable appeal, finding the applicant had not done so. Balancing the interests, and noting the petitioners' rights had been found violated, the court granted a conditional stay rather than an unconditional one.

p. 9
02

Who to bear the costs of the application

Holding

No order as to costs.

Reasoning

Although the application was unopposed and was allowed on conditions, the court, in balancing the interests of the parties and in view of the judgment which had found the respondents' rights violated, declined to award costs on the application, ordering instead that there be no order as to costs.

p. 10

Legal principles established

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  • An unopposed application does not automatically succeed; the court must examine its merits.
  • Stay of execution under Order 42 Rule 6 requires substantial loss, no unreasonable delay, security for due performance, and demonstration of an arguable appeal which would be rendered nugatory if stay is refused.

Court orders

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  1. 1.Stay of execution of the Judgment and Decree rendered on 03/03/2021 granted pending the hearing and determination of the intended appeal, on conditions
  2. 2.The Applicant to pay half of the decretal sums in all the limbs of the judgment to the Respondents within thirty (30) days of the ruling, in default of which the stay orders shall lapse
  3. 3.The Applicant to deposit the balance of the decretal sum in Court within thirty (30) days, failure of which the stay orders shall lapse
  4. 4.The Applicant to file and serve the record of appeal within sixty (60) days of the ruling, in default of which the stay orders shall lapse irrespective of compliance with the earlier conditions
  5. 5.No order as to costs of the instant Application

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 32

Cases cited (11)

  • HGE v SM
    [2020] eKLR
  • G.N. Muema P/A (Sic) Mt View Maternity & Nursing Home v Miriam Maalim Bishar & another
    [2018] eKLR
  • Victory Construction v BM (a minor suing through next friend one PMM)
    [2019] eKLR
  • Century Oil Trading Co. Ltd v Kenya Shell Ltd
    Nairobi Milimani 1561 of 2007
  • Focin Motorcycle Co. Limited v Ann Wambui Wangui & another
    [2018] eKLR
  • Lee G. Muthoga v Habib Zurich Finance Ltd & Anor
    (2016) eKLR
  • Arun C Sharma v Ashana Raikundalia T/A A Raikundalia & Co Advocates & 2 Others
    [2014] eKLR
  • Daniel Walter Rasugu v. Johana Nyakwoyo Buti & 2 Others
    [2008] eKLR
  • Masisi Mwita -vs- Damaris Wanjiku Njeri
    (2016) eKLR, Civil Appeal No.107 of 2015
  • Halal & Another v Thornton & Turpin Ltd
  • Hassan Guyo Wakalo v Straman EA Ltd
    (2013)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010; Rule 32 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Ochieng (Suing on his Own behalf and on behalf of:) & 112 others v Kabarak Farm Ltd & 23 others; County Government of Trans Nzoia & 9 others (Interested Party) (Environment & Land Petition 3 of 2017) [2022] KEELC 2975 (KLR)", Case Analysis (2022). Not stated in the judgment (constitutional petition; application dated 17/05/2021, filed 18/05/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2975/eng@2022-06-21

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