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ELCDismissedNot stated in the judgment· [2023] KEELC 102 (KLR)

Omondi (Suing as the administrator of the Estate of Joshua Omondi Obuor (Deceased) v Opiyo & another (Environment and Land Appeal 24 of 2021) [2023] KEELC 102 (KLR)

Environment and Land Court of Kenya
19 January 2023
2,205 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan land court dismissed a losing party's attempt to pause enforcement of a judgment because he showed he occupied the land but never proved the real harm he would suffer.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Siaya (A. Y. Koross, J) determined an unopposed notice of motion dated October 17, 2022 filed by the 1st respondent under Sections 72 and 79D of the Civil Procedure Act, Order 42 Rule 6(1) of the Civil Procedure Rules and Rule 40 of the Court of Appeal Rules, 2010. The applicant sought leave to appeal, stay of execution, and review of the court's final orders of October 13, 2022, in which a permanent injunction had been issued against him in relation to North Gem/Siriwo/202. The appellant and 2nd respondent did not participate. The court framed four issues: entitlement to leave to appeal, the threshold for stay of execution, review of the final orders, and costs. On leave, it held that an appeal from an Order 42 decision lies as of right under Section 75 of the Civil Procedure Act and Order 43 Rule 1(3), rendering the prayer for leave incompetent. On stay, applying Order 42 Rule 6(2) and Vishram Ravji Halal v Thornton & Turpin, it found no unreasonable delay but held that mere occupation of the suit property did not demonstrate substantial loss, citing Charles Wahome Gethi v Angela Wairimu Gethi. On review, invoking Section 80 and Order 45 Rule 1, it found no new and important matter, no error apparent on the face of the record, and noted that seeking review could forfeit the right of appeal, citing HA v LB. The court dismissed the motion in its entirety, awarded no costs to the non-participating parties, and ordered the 1st respondent to bear his own costs.

Key legal issues

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01

Whether leave to appeal was required

Holding

Leave was not required because an appeal from an Order 42 decision lies as of right; the prayer for leave was incompetent.

Reasoning

The court applied Section 75 of the Civil Procedure Act and Order 43 Rule 1(3) of the Civil Procedure Rules, which list the orders from which appeals lie as of right. Orders emanating from Order 42 are among those. Since the court's October 13, 2022 ruling was made under Order 42 Rule 32, an aggrieved party could appeal as of right and leave was unnecessary.

p. 3
02

Whether the threshold for stay of execution was met

Holding

The threshold was not met; the applicant showed no unreasonable delay but failed to establish substantial loss.

Reasoning

Applying Order 42 Rule 6(2) and Vishram Ravji Halal v Thornton & Turpin, the court required demonstration of no unreasonable delay, substantial loss and provision of security. Although the motion was filed promptly (four days after judgment), the applicant only asserted occupation of the suit property and, per Charles Wahome Gethi v Angela Wairimu Gethi, did not go further to substantiate the substantial loss he would suffer upon execution.

p. 4
03

Whether the court should review its final orders of October 13, 2022

Holding

Review did not lie; none of the grounds in Section 80 of the Civil Procedure Act and Order 45 Rule 1 were satisfied.

Reasoning

The court restated Section 80 and Order 45 Rule 1, noting that review requires discovery of new and important matter or evidence, an error apparent on the face of the record, or other sufficient reason. The offending order was identified as the permanent injunction in paragraph (c) of the final orders. The applicant disclosed no new matter or error, and seeking review while the appeal process had not begun risked forfeiting the right to appeal.

p. 5

Legal principles established

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  • An appeal lies as of right against orders under Order 42 of the Civil Procedure Rules, so no leave to appeal is required
  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution, and mere occupation of the suit property is insufficient to establish it
  • An application for review of a judgment may operate to bar an appeal against that judgment

Court orders

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  1. 1.The prayer for leave to appeal was found to be incompetently before the court and was not granted
  2. 2.The prayer for stay of execution was refused, the applicant not having met the threshold
  3. 3.The prayer for review of the orders of October 13, 2022 was refused, no ground for review under Section 80 and Order 45 Rule 1 having been met
  4. 4.The 1st respondent's notice of motion dated October 17, 2022 was dismissed
  5. 5.The 1st respondent was ordered to bear his own costs; the appellant and 2nd respondent, having not participated, were awarded no costs

Authorities

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Legislation

  • Civil Procedure ActSection 72
  • Civil Procedure ActSection 79D
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure ActSection 75 (including 75(1)(h))
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2), Rule 32
  • Civil Procedure RulesOrder 43 Rule 1 and Rule 1(3)
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 45 Rule 1
  • Court of Appeal Rules, 2010Rule 40

Cases cited (5)

  • Peter Nyaga Murake v Joseph Mutunga
    Civil Appeal Number 86 of 2015
  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • Vishram Ravji Halal v Thornton & Turpin
    Civil Application No Nai. 15 of 1990 [1990] KLR 365
  • Charles Wahome Gethi v Angela Wairimu Gethi
    [2008] eKLR
  • HA v LB
    [2022] eKLR
Jurisdiction invoked
Sections 72, 75, 79D and 80 of the Civil Procedure Act, Order 42 Rule 6 and Order 45 Rule 1 of the Civil Procedure Rules

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, "Omondi (Suing as the administrator of the Estate of Joshua Omondi Obuor (Deceased) v Opiyo & another (Environment and Land Appeal 24 of 2021) [2023] KEELC 102 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/102/eng@2023-01-19

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