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ELCAllowedEnvironment and Land Appeal E019 of 2022· [2022] KEELC 14793 (KLR)

Achieng v Odongo & 2 others

Environment and Land Court at Siaya
17 November 2022
AKA. Y. Koross
1,334 words in judgment
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The bottom line

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A Siaya court paused enforcement of a land judgment because acting on it before the appeal could cause irreversible loss.

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 Siaya (A.Y. Koross, J) on a notice of motion dated June 20, 2022 by the appellant, Yunia A Achieng, seeking stay of execution of the judgment and decree of June 9, 2022 in Bondo ELC Case No 36 of 2021, pending appeal. The trial court had ordered the respondents registered as proprietors of North Sakwa/Nyawita/1662 as adverse possessors and issued permanent injunctive orders against the appellant, whose trespass claim was dismissed. The motion, brought under order 42 rule 6 of the Civil Procedure Rules, was unopposed - the respondents did not participate despite service - but the court determined it on its own merits. Framing the sole issue as whether the motion was merited, the court applied the settled tripartite test: substantial loss, absence of unreasonable delay, and security for due performance. The application was filed four days after judgment and was timeous; the court was satisfied that if the respondents executed the decree they might deal with the land in a manner difficult to countermand, causing substantial loss and rendering the appeal nugatory. The court declined to examine the merits of the appeal, holding it sufficient that the memorandum raised arguable grounds. The motion was allowed with stay granted, conditional on the appellant depositing Kshs 200,000/= in a joint interest-earning account or a bank guarantee within 30 days, failing which the respondents may execute. The appellant was also restrained from transacting on the suit property or interfering with its register, directed to file the record of appeal within 30 days, and costs were made to abide the appeal.

Key legal issues

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01

Whether the appellant satisfied the conditions for stay of execution under order 42 rule 6(2)

Holding

Yes - the application was timeous, substantial loss was shown since execution could render the appeal nugatory, and the appellant was willing to furnish security.

Reasoning

The court found the motion filed four days after judgment, hence timeous. If respondents executed the decree they might deal with the suit property in a manner difficult to countermand, causing substantial loss. The appellant indicated willingness to furnish security, and the memorandum of appeal raised arguable grounds. The court applied the settled principles in Butt v Rent Restriction Tribunal and the authorities cited by counsel.

p. 3
02

Whether the court should examine the merits of the appeal before granting stay

Holding

No - it is not the purview of the court to go into the merits of the appeal; it suffices that the memorandum of appeal raises arguable grounds.

Reasoning

Relying on Safaricom Sacco Limited v Stephen Chorio Kiai, the court held that a stay application does not require a full merits assessment. The court only scrutinised the memorandum of appeal to confirm it raised arguable grounds, which it found it did.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must show substantial loss, that the application was made without unreasonable delay, and must furnish security for due performance of the decree.
  • The purpose of stay pending appeal is to preserve the substratum of the case, and the court must balance the interests of the appellant with those of the respondent.

Court orders

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  1. 1.Stay of execution of the decree and judgment dated June 9, 2022 in Bondo ELC Case No 36 of 2021 granted pending appeal
  2. 2.Appellant to deposit Kshs 200,000/= in an interest-earning joint account in the names of the advocates on record, or alternatively deposit in court a letter of guarantee from a reputable financial institution for the same amount, within 30 days, in default of which the respondents may execute the decree
  3. 3.Appellant restricted from transacting on the suit property or interfering with its register pending determination of the appeal
  4. 4.Appellant to file and serve the record of appeal within 30 days
  5. 5.Mention on January 17, 2023 to confirm compliance and issue further directions
  6. 6.Costs to abide the outcome of the appeal
On appeal from
Bondo (trial court, ELC Case No 36 of 2021)
Bondo ELC Case No 36 of 2021
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act

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, "Achieng v Odongo & 2 others", Case Analysis (2022). Environment and Land Appeal E019 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14793/eng@2022-11-17

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