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ELCAllowedHoma-Bay ELC Appeal (notice of motion dated September 12, 2022)· [2023] KEELC 346 (KLR)

Ongoro v Ouma (Environment and Land Appeal E043 of 2022) [2023] KEELC 346 (KLR)

Environment and Land Court
30 January 2023
846 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Homa-Bay stopped execution of a land decree pending appeal, ruling that a 12-day filing delay was not unreasonable.

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 Homa-Bay (Ong'ondo J) on a notice of motion dated September 12, 2022 by Clement Kotonya Ongoro, the appellant in an appeal against the judgment and decree of 30th August 2022 in Homa-Bay Chief Magistrate's Court ELC Case No. E001 of 2022 (Oon Ouma v Clement Kotonya Ongoro). The applicant sought a stay of execution of the trial decree pending the hearing and determination of his appeal, together with preservation reliefs and costs. The respondent was duly served by licensed process servers on several dates but filed neither a response nor submissions. The court proceeded on the basis that the right to be heard is fundamental and that a served party may choose to respond or decline. Determining whether the applicant met the requirements of Order 42 rule 6(2) of the Civil Procedure Rules, 2010, the court found that substantial loss was demonstrated because execution could result in the applicant's eviction from suit parcels Homa Bay/Kanyango/Karanding/3017 and 3021, rendering the appeal nugatory given triable issues on lawful ownership. The applicant's twelve-day delay in filing the application was held not unreasonable, guided by Order 50 rules 2, 3, 8 and 9 and equitable principles anchored on article 10(2)(b) of the Constitution. On security, the court held the requirement is discretionary and imposed none so as not to prevent the appeal. The court additionally invoked section 13(7)(a) of the Environment and Land Court Act, 2015 empowering it to grant interim preservation orders. The application was allowed in terms of the stay sought, with costs of the application to abide the appeal.

Key legal issues

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01

Substantial loss

Holding

Substantial loss was shown since the respondent might execute and evict the applicant from the suit parcels, rendering the appeal nugatory.

Reasoning

The applicant contended the respondent was bound to execute the decree, exposing him to eviction from parcels Homa Bay/Kanyango/Karanding/3017 and 3021. The memorandum of appeal raised triable issues, including lawful ownership of the suit parcels, so a stay was needed to prevent the appeal becoming nugatory while the merits awaited hearing.

p. 2
02

Delay in bringing the application

Holding

The 12-day delay in filing the application was not unreasonable and did not disqualify the applicant.

Reasoning

The court applied Order 50 rules 2, 3, 8 and 9 of the Civil Procedure Rules and equitable principles against delay, anchored on article 10(2)(b) of the Constitution. Judged against the character of the application, a twelve-day delay was not unreasonable in the circumstances, so the second Order 42 rule 6 requirement was satisfied.

p. 2
03

Security for due performance of the decree

Holding

Security is discretionary and the court exercised that discretion in the circumstances so as not to prevent the appeal.

Reasoning

Relying on Doshi Iron Mongers Ltd v Kenya Revenue Authority, the court noted no party is exempt from depositing security for due performance of a decree, but following Butt v Rent Restriction Tribunal held the requirement lies within the court's discretion depending on the circumstances, so as not to prevent the appeal; no specific security was imposed in the final orders.

p. 2
04

Respondent's non-participation despite service

Holding

The respondent was duly served and had the right to appear or decline; the application could proceed undefended.

Reasoning

Service was proved by affidavits of licensed process servers dated September 12, September 22, September 28 and November 3, 2022. The court, invoking the right to be heard under article 50(1) and 25(c) of the Constitution and Ogada v Mollin, held the respondent had the right to appear and respond or decline to do so; the application was therefore determined on the applicant's material and submissions.

p. 2

Legal principles established

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  • A 12-day delay in filing a stay application, judged against the character of the application, was not unreasonable.
  • The requirement of security is a matter of the court's discretion depending on the circumstances of the case.
  • The ELC has statutory power under section 13(7)(a) of the Environment and Land Court Act to grant interim preservation orders, including stay, to preserve land.

Court orders

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  1. 1.Stay of execution of the decree and judgment of 30th August 2022 in Homa-Bay Chief Magistrate's Court ELC Case No. E001 of 2022 granted pending the hearing and determination of the appeal
  2. 2.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 25(c)
  • Constitution of Kenya, 2010Article 10(2)(b)
  • Civil Procedure Rules, 2010Order 42 rule 6(2)
  • Civil Procedure Rules, 2010Order 50 rules 2, 3, 8 and 9
  • Environment and Land Court Act, 2015Section 13(7)(a)

Cases cited (3)

  • Ogada v Mollin
    (2009) eKLR
  • Butt v Rent Restriction Tribunal
    (1982) KLR 7
  • Doshi Iron Mongers Ltd v Kenya Revenue Authority and another
    (2020) eKLR
On appeal from
Homa-Bay Chief Magistrate's Court
ELC Case No. E001 of 2022
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules, 2010 and section 13(7)(a) of the Environment and Land Court Act, 2015

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, "Ongoro v Ouma (Environment and Land Appeal E043 of 2022) [2023] KEELC 346 (KLR)", Case Analysis (2023). Homa-Bay ELC Appeal (notice of motion dated September 12, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/346/eng@2023-01-30

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