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ELCAllowedNot stated in the judgment (arising from Kisumu CMCELC No. 194 of 2018)· [2023] KEELC 611 (KLR)

Otieno v Otieno (Suing as the legal representative of the Estate of Patrice Otieno Ochola (Deceased) & 2 others (Environment and Land Appeal E005 of 2022) [2023] KEELC 611 (KLR)

Not expressly stated in the judgment (a superior court sitting at Kisumu, Judge S. Okong'o)
2 February 2023
1,076 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 1st respondent sued the appellant in Kisumu CMCELC No. 194 of 2018 seeking cancellation of title to Kisumu/Nyalunya/926 and rectification of the register in his favour pursuant to findings of a land arbitration board of October 10, 1979. By a judgment delivered on January 19, 2022, Hon S.N Telewa, SRM found that the property had been irregularly registered in the appellant's name and ordered cancellation of the appellant's title and registration of the property in the 1st respondent's name, with costs to the 1st respondent. The appellant filed the present appeal on February 16, 2022 and, by a notice of motion dated September 14, 2022, sought a stay of execution of that judgment. The 1st respondent opposed, contending the application was overtaken by events and did not meet the threshold for a stay. Applying Order 42 rule 6 of the Civil Procedure Rules and the substantial-loss test in Kenya Shell Limited v Karuga, the court found the appellant would suffer substantial loss if the stay was refused: he had been registered owner since 1978, and once the property was transferred to the 1st respondent it could be disposed of to third parties and put beyond his reach pending appeal. The appellant had also offered to abide by any security order. The court allowed the application in terms of prayer 2, conditional on the appellant depositing Kshs 50,000 in court as security within 60 days, failing which the stay would stand discharged automatically. Costs of the application were to be in the cause. This ruling determined only the interlocutory stay application; the appeal remains pending.

Key legal issues

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01

Substantial loss as the condition for stay of execution

Holding

The appellant demonstrated substantial loss because unless the stay was granted, he risked losing the suit property, which could be disposed of to third parties and put beyond his reach pending appeal.

Reasoning

The court reasoned that the appellant had been the registered owner since 1978 and the lower court had ordered cancellation of that title. Once registered in the 1st respondent's name, nothing would stop him from disposing of the property to third parties, so the risk of the property being put beyond the appellant's reach pending appeal was real, satisfying Order 42 rule 6(2)(a).

p. 2
02

Security for due performance of the decree

Holding

The appellant's stated willingness to abide by any order on security satisfied condition (b); the court imposed a Kshs 50,000 deposit within 60 days, failing which the stay would stand discharged automatically.

Reasoning

Order 42 rule 6(2)(b) requires such security as the court orders for due performance of the decree. The appellant submitted he was willing to abide by any security order. The court fixed Kshs 50,000 to be deposited within 60 days, with automatic discharge of the stay in default, thus tailoring the stay to protect the 1st respondent.

p. 3
03

Wrong provision cited in the application

Holding

The court noted the application was cited under Order 12 rule 7, which was not relevant, but considered it under Order 42 rule 6 which governs stay of execution.

Reasoning

The court observed that the application fell for consideration under Order 42 rule 6 of the Civil Procedure Rules and that it was not clear why it had been brought under Order 12 rule 7, which was irrelevant to the issue. The court nevertheless proceeded to determine the application on the correct provision rather than dismissing it for the mis-citation.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution; without evidence of substantial loss the respondents should not be kept out of their money.

Court orders

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  1. 1.The application dated September 14, 2022 is allowed in terms of prayer 2 thereof
  2. 2.The appellant shall deposit in court a sum of Kshs 50,000/- as security within 60 days, in default of which the stay granted shall stand discharged without further reference to the court
  3. 3.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1) and 6(2)
  • Civil Procedure RulesOrder 12 rule 7

Cases cited (1)

  • Kenya Shell Limited v Karuga
    (1982 – 1988) I KAR 1018
On appeal from
Kisumu Chief Magistrate's Court (CMCELC)
Kisumu CMCELC No. 194 of 2018
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules (appellate jurisdiction over Kisumu CMCELC No. 194 of 2018)

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, "Otieno v Otieno (Suing as the legal representative of the Estate of Patrice Otieno Ochola (Deceased) & 2 others (Environment and Land Appeal E005 of 2022) [2023] KEELC 611 (KLR)", Case Analysis (2023). Not stated in the judgment (arising from Kisumu CMCELC No. 194 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/611/eng@2023-02-02

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