Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedHoma Bay ELC OS No. 61 of 2021 - Ruling 2· [2023] KEELC 347 (KLR)

Ouko v Adundo & 2 others (Environment and Land Case Civil Suit 61 of 2021) [2023] KEELC 347 (KLR)

Environment and Land Court
30 January 2023
GOG.M.A Ong'ondo
1,058 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

The Homa Bay Environment and Land Court paused enforcement of a land judgment, but only after ordering the losing party to deposit money as security.

What this practically means

#

Executive summary

#
By a notice of motion dated October 6, 2022, the 3rd defendant, Abayo Miriam Ochieng, sought stay of execution of the court's judgment delivered on September 27, 2022 and all consequential orders and decree, pending the hearing and determination of her intended appeal, for which a notice of appeal dated October 4, 2022 had been filed. The plaintiff, Martin Guya Ouko, opposed the application in a replying affidavit sworn October 17, 2022, contending that the applicant had not shown the intended appeal to be arguable. The application was canvassed by written submissions pursuant to directions of October 7, 2022. Ong'ondo J framed the application against the conditions in order 42 rule 6 of the Civil Procedure Rules, 2010: substantial loss, absence of unreasonable delay, and security for due performance of the decree. Relying on Kenya Shell Ltd v Benjamin Karuga Kibiru, the court reaffirmed that substantial loss is the cornerstone of the stay jurisdiction. The notice of appeal satisfied order 42 rule 6(4); the interval between judgment and application was not an unreasonable delay; and citing Doshi Iron Mongers, the court held that no party is exempt from providing security. Invoking its absolute discretion as guided by Butt v Rent Restriction Tribunal and section 13(7)(a) of the Environment and Land Court Act, the court found the application meritorious, granted the stay sought, and conditioned it on the applicant depositing Kshs 15,0000 as security within 30 days, failing which the stay lapses automatically. Costs of the application were ordered to abide the appeal at the Court of Appeal.

Key legal issues

#
01

Substantial loss

Holding

Substantial loss is the cornerstone of the jurisdiction to grant a stay; without evidence of it, a stay is rarely warranted

Reasoning

The court relied on Kenya Shell Ltd v Benjamin Karuga Kibiru, adopting the principle that substantial loss in its various forms is what the stay jurisdiction is designed to prevent, while noting that granting a stay denies a successful litigant the fruits of judgment.

p. 2
02

Filing of appeal for purposes of order 42 rule 6(4)

Holding

The filing of a notice of appeal suffices to deem an appeal filed for purposes of an application for stay

Reasoning

The court noted the notice of appeal dated October 4, 2022 and held that under order 42 rule 6(4), an appeal to the Court of Appeal is deemed filed once the notice of appeal has been filed under that court's rules.

p. 3
03

Delay and security

Holding

The interval between judgment and the application was not an unreasonable delay, and no party is exempt from providing security

Reasoning

Applying order 50 rules 2, 3, 8 and 9, the court found the period between the September 27, 2022 judgment and the October 6, 2022 application hardly amounted to unreasonable delay. Citing Doshi Iron Mongers, it held security must be given, fixing Kshs 15,0000 to be deposited within 30 days.

p. 3
04

Discretion to grant stay

Holding

The court has absolute discretion to grant a stay, guided by Butt v Rent Restriction Tribunal and section 13(7)(a) of the ELC Act

Reasoning

The court found the application meritorious, invoking its absolute discretion as guided by the Butt decision and section 13(7)(a) of the Environment and Land Court Act, 2015, and granted the stay sought with a security condition.

p. 3

Legal principles established

#
  • An applicant for stay pending appeal must establish the conditions in order 42 rule 6: substantial loss, absence of unreasonable delay, and security for due performance of the decree
  • Substantial loss is the cornerstone for granting a stay

Court orders

#
  1. 1.An order of stay of execution of the judgment delivered on September 27, 2022 and all consequential orders and decree pending the hearing and determination of the appeal
  2. 2.The applicant to deposit in court within 30 days a sum of Kshs 15,0000 only as security for the due performance of the decree, failing which the stay order lapses automatically
  3. 3.Costs of the application to abide the appeal at the Court of Appeal

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6(1), (2), (4)
  • Civil Procedure Rules, 2010Order 50 rules 2, 3, 8, 9
  • Constitution of Kenya, 2010Articles 25(c), 48, 50(1)
  • Environment and Land Court Act, 2015Section 13(7)(a)

Cases cited (3)

  • Butt v Rent Restriction Tribunal
    (1979) eKLR
  • Kenya Shell Ltd v Benjamin Karuga Kibiru and another
    (1986) eKLR
  • Doshi Iron Mongers Ltd v Kenya Revenue Authority and another
    (2020) eKLR
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules, 2010; section 13(7)(a) Environment and Land Court Act, 2015

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ouko v Adundo & 2 others (Environment and Land Case Civil Suit 61 of 2021) [2023] KEELC 347 (KLR)", Case Analysis (2023). Homa Bay ELC OS No. 61 of 2021 - Ruling 2. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/347/eng@2023-01-30

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