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ELCAllowedHoma Bay ELC Appeal (arising from Homa Bay ELC No. 55 of 2019)· [2022] KEELC 3559 (KLR)

Ong’ondo v Ongus (Environment and Land Appeal E007 of 2022) [2022] KEELC 3559 (KLR)

Environment and Land Court
17 May 2022
GOG M A Ongondo
1,049 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Homa Bay paused a land case on appeal, confirming courts only stop proceedings in rare, well-justified circumstances.

What this practically means

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Executive summary

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The applicant, Erick Odhiambo Ongondo, moved the Environment and Land Court at Homa Bay by Notice of Motion dated March 4, 2022, brought under Order 51 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Sections 3A and 1A of the Civil Procedure Act, seeking a stay of proceedings in Homa Bay ELC No. 55 of 2019 pending the hearing of his appeal. The appeal challenged a ruling of Hon. J. S. Wesonga (Principal Magistrate) of September 17, 2021, which stayed Homa Bay ELC No. 44 of 2020 and fast-tracked ELC No. 55 of 2019, in which one of the orders sought was the applicant's eviction from land parcel Kanyada/Kanyango/Kalanya/1600. The application was unopposed; the respondent filed neither a replying affidavit nor submissions despite service. The court framed two issues: whether the applicant met the threshold for a stay of proceedings, and costs. Applying Re Global Tours & Travel Ltd. and Kenya Wildlife Service v James Mutembei, the court reiterated that stay of proceedings is a grave judicial action impinging on access to justice and fair trial, warranting a high and stringent test: an arguable appeal with high chances of success, and that the appeal would be rendered nugatory absent a stay. Finding the draft memorandum of appeal raised triable issues amounting to special circumstances, and citing Butt v Rent Restriction Tribunal on the undoubted right of appeal, the court allowed the application, stayed the lower court proceedings pending determination of the appeal, and ordered that costs of the application abide the appeal.

Key legal issues

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01

Whether the threshold for stay of proceedings pending appeal was met

Holding

The application was merited; the draft memorandum of appeal raised triable issues constituting special circumstances, and the stay was granted pending the appeal.

Reasoning

The court held that the decision to stay proceedings is discretionary, guided by Re Global Tours & Travel Ltd. The applicant faced eviction from the suit property in the lower court; if the suit proceeded and judgment was rendered before the appeal was heard, the appeal would be rendered nugatory. The draft memorandum raised triable issues, and the undoubted right of appeal (Butt v Rent Restriction Tribunal) amounted to special circumstances justifying the stay.

p. 3
02

The stringent test for stay of proceedings

Holding

Stay of proceedings is granted sparingly because it impedes access to justice and the right to a fair hearing without delay.

Reasoning

Relying on Kenya Wildlife Service v James Mutembei, the court distinguished stay of proceedings from stay of execution, noting that staying proceedings seriously interferes with a litigant's right to conduct litigation, impinging on rights of access to justice, fair hearing under Articles 48 and 50(1), and the timely disposal of justice under Article 159(2)(b). Hence the test is high and stringent.

p. 2

Legal principles established

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  • Stay of proceedings is a grave judicial action that interferes with a litigant's right to conduct litigation; the test for its grant is high and stringent.
  • To obtain stay of proceedings pending appeal, the applicant must show an arguable appeal with high chances of success and that the appeal would be rendered nugatory if stay is not granted.

Court orders

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  1. 1.Stay of the trial court's proceedings in Homa Bay ELC No. 55 of 2019 granted pending the hearing and determination of the instant appeal
  2. 2.Costs of the application to abide the appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 42 Rule 6(1)
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Civil Procedure Act, Chapter 21 Laws of KenyaSections 3A, 1A and 1B
  • Constitution of Kenya, 2010Article 159(2)(b)
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50(1)
  • Environment and Land Court Act, 2015 (2011)Section 3
  • Environment and Land Court Practice Directions, 2014Practice Direction number 33

Cases cited (6)

  • Peter Kariuki Mburu & anor v Neema Shah
    Civil Appeal No. 118 of 2020
  • Re-Global Tours and Travel Ltd.
    HCWC No. 43 of 2000
  • Kenya Wildlife Service v James Mutembei
    (2019) eKLR
  • James Kanyiita Nderitu and another v Marios Philotas Ghikas and another
    (2016) eKLR
  • Onyango Oloo v Attorney General
    (1986-89) EA 456
  • Butt v Rent Restriction Tribunal
    (1979) eKLR
On appeal from
Chief Magistrates' Court / Magistrates' Court at Homa Bay
Homa Bay ELC No. 55 of 2019
Jurisdiction invoked
Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 as read with Section 3A and 1A of the Civil Procedure Act (Cap. 21)

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, "Ong’ondo v Ongus (Environment and Land Appeal E007 of 2022) [2022] KEELC 3559 (KLR)", Case Analysis (2022). Homa Bay ELC Appeal (arising from Homa Bay ELC No. 55 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3559/eng@2022-05-17

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