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ELCDismissed· [2023] KEELC 710 (KLR)

Nyandat v Ochieng (Environment & Land Case 61 of 2016) [2023] KEELC 710 (KLR)

Environment and Land Court
9 February 2023
SOS. OKONG’O
1,215 words in judgment
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The bottom line

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The Environment and Land Court in Kisumu dismissed a stay of execution application because the applicant waited 11 months and showed no real harm.

What this practically means

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Executive summary

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By a judgment delivered on October 15, 2021, the Environment and Land Court at Kisumu granted the plaintiff a permanent injunction restraining the defendant from interfering with her quiet possession of Title No. Kisumu/Dago/1300, dismissed the defendant’s counter-claim, and awarded the plaintiff costs. The defendant filed a Notice of Appeal and, on August 15, 2022, moved the court under Order 42 Rule 6 of the Civil Procedure Rules seeking a stay of execution of that judgment pending appeal, offering to furnish security. The plaintiff opposed through grounds of contention, arguing unreasonable delay and failure to meet the stay conditions. The court applied Order 42 Rule 6(2) and the Kenya Shell Limited v Karuga principle that substantial loss is the cornerstone for granting a stay. It found no substantial loss: the decree merely restrained the defendant from interfering with the plaintiff’s titled parcel, while the defendant retains her own title to Kisumu/Dago/1755, which was found in the main judgment to be separate and distinct from the plaintiff’s parcel. The court also held the application inordinately delayed, having been filed 11 months after judgment, and rejected the explanation that the defendant was waiting to file the substantive appeal, since a filed Notice of Appeal suffices for stay purposes. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Substantial loss

Holding

The defendant failed to prove she would suffer substantial loss since she retains her own title to Kisumu/Dago/1755 and nothing suggested her land would be lost by the injunction remaining in force

Reasoning

The court noted the judgment merely restrained the defendant from interfering with the plaintiff’s parcel, Kisumu/Dago/1300. The defendant retains her title to Kisumu/Dago/1755, and it was not suggested her parcel would be lost or her title cancelled. She therefore failed to discharge the burden of proving substantial loss under Order 42 Rule 6(2).

p. 2
02

Unreasonable delay

Holding

The application filed 11 months after judgment was delayed, and the explanation that the defendant wanted to file the appeal first was unreasonable

Reasoning

Judgment was delivered on October 15, 2021 and the stay application filed on September 16, 2022. The stated reason - wanting to lodge the appeal first - was rejected because a filed Notice of Appeal suffices for stay purposes, making the delay inexcusable under Order 42 Rule 6(2)(a).

p. 3

Legal principles established

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  • A Notice of Appeal once filed acts as an appeal for purposes of an application for stay, so waiting to file the substantive appeal does not explain delay in applying for stay
  • Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution

Court orders

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  1. 1.The defendant’s application dated August 15, 2022 is dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (1)

  • Kenya Shell Limited v Karuga
    (1982 – 1988) I KAR 1018
Jurisdiction invoked
Order 42 Rule 6 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, "Nyandat v Ochieng (Environment & Land Case 61 of 2016) [2023] KEELC 710 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/710/eng@2023-02-09

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