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)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the criteria for stay of execution pending appeal were met
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.
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.
Who to bear the costs of the application
No order as to costs.
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.
Legal principles established
#- 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
#- 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.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.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.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.No order as to costs of the instant Application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.