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ELCDismissedELC No. 188 of 2014 (notice of motion dated July 2, 2021)· [2022] KEELC 3092 (KLR)

Owiti v Ogutah (Miscellaneous Civil Application 34 of 2020) [2022] KEELC 3092 (KLR)

Environment and Land Court
6 May 2022
AOAntony Ombwayo
1,260 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 Kisumu refused to stop a man's eviction from land he claims to have farmed for 50 years, because he never filed his appeal.

What this practically means

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Executive summary

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William Otieno Owiti (applicant) moved the Environment and Land Court at Kisumu by notice of motion dated July 2, 2021 seeking stay of orders made by the Principal Magistrate on August 6, 2020 in ELC No. 73 of 2020 (Victor Onyango Ogutah v William Otieno Owiti), which required him to vacate land parcels 5255 and 6065 Wawidha 'A' 1 Adjudication Section within 45 days, and temporary injunctions restraining his eviction pending an intended appeal against a ruling of June 11, 2021 dismissing his application for stay and extension of time. He claimed he had lived on the land over 50 years and that consent had only covered one parcel. The respondent, asserting registered ownership, deposed that the applicant was sued as a trespasser, fully participated in the proceedings, was granted 30 days to appeal and never did, sought review which was dismissed, and had already been executed against after the 45-day stay lapsed while he continued cultivating the land. Parties agreed to canvass the application by written submissions but did not comply with the court's directions. The court perused the pleadings, found the application lacked merit, and dismissed it with costs to the respondent in a judgment delivered at Kisumu on May 6, 2022 by Antony Ombwayo, J, electronically owing to COVID-19 measures. No orders of stay or injunction were issued and no reasoned analysis was provided.

Key legal issues

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01

Whether stay of execution and temporary injunction orders ought to issue

Holding

The application lacks merit and was dismissed

Reasoning

The applicant sought to stay the Principal Magistrate's orders of August 6, 2020 and to restrain eviction pending an intended appeal. The respondent opposed, noting the applicant had been granted leave to appeal and 45 days' stay, never appealed, had already been executed against, and was cultivating the land in breach of court orders. The court, having perused the pleadings, found the application without merit and dismissed it with costs, without issuing a reasoned analysis.

p. 3

Legal principles established

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    Court orders

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    1. 1.The application dated July 2, 2021 is dismissed
    2. 2.Costs to the respondent

    Authorities

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    Legislation

    • Land Adjudication Actsection 30
    On appeal from
    Chief Magistrate's Court, Kisumu
    ELC No. 73 of 2018 (Victor Onyango Ogutah v William Otieno Owiti)
    Jurisdiction invoked
    Not expressly stated; the court entertained a notice of motion for stay of subordinate court orders and temporary injunction arising from ELC No. 73 of 2020

    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, "Owiti v Ogutah (Miscellaneous Civil Application 34 of 2020) [2022] KEELC 3092 (KLR)", Case Analysis (2022). ELC No. 188 of 2014 (notice of motion dated July 2, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3092/eng@2022-05-06

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