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ELCDismissedEnvironment & Land Miscellaneous Case E015 of 2022· [2023] KEELC 16309 (KLR)

Oduor (Suing as the administrator of the Estate of Lucas Oduor Omondi) v Awino & 2 others

Environment and Land Court
16 March 2023
AKA. Y. Koross
2,051 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Siaya court refused to let a family appeal eight months late because they gave no good reason for the delay, and you cannot 'stay' a case dismissal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Siaya (Koross J) determined the applicant's notice of motion dated 17/10/2022 seeking leave to appeal out of time against the judgment of the Principal Magistrate in Ukwala ELC No. 5 of 2018 delivered on 22/03/2022, together with a stay of execution of the decree and costs, and the recall and lifting of warrants of attachment and sale said to have been issued irregularly. The applicant, administrator of the estate of Lucas Oduor Omondi, claimed he had not been notified of the judgment date and that the delay in filing was not inordinate. The respondents countered that judgment notice had been duly issued by email to both counsel on 28/04/2022, that the supporting affidavit was sworn by a stranger (counsel) without disclosed authority, and that the appeal was not arguable. Adopting the two issues framed by the applicant's counsel, the court held that no good and sufficient cause for the delay had been demonstrated: the judgment notice had been sent to the same email address counsel gave to the court, the respondent's counsel had notified the applicant of every execution step, and the roughly eight-month delay was inordinate, rendering the motion an afterthought. On stay, the court held that the trial court's dismissal of the suit was a negative order incapable of execution or stay, and that costs alone were not capable of being stayed. The motion was dismissed with costs to the respondent.

Key legal issues

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01

Leave to appeal out of time

Holding

Refused; the applicant failed to show good and sufficient cause for the delay

Reasoning

The applicant's sole explanation was non-receipt of a judgment notice. The respondent produced a judgment notice emailed to both counsel on 28/04/2022, and the respondent's counsel had also reminded applicant's counsel of the judgment and notified him of every execution step. The evidence was unrefuted. The delay of nearly 8 months from judgment on 22/03/2022 to filing on 15/11/2022 was inordinate and the motion was an afterthought.

p. 4
02

Stay of execution pending appeal

Holding

Refused; the dismissal of the suit was a negative order incapable of stay

Reasoning

The trial court merely dismissed the applicant's suit, leaving the parties in the position they occupied before the suit. Such a negative order cannot be executed or stayed. The only executable element would be costs, which the court held are not capable of being stayed. The court adopted Makhandia J's reasoning in Raymond M. Omboga v Austine Pyan Maranga.

p. 4

Legal principles established

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  • An applicant for extension of time must demonstrate good and sufficient cause for not filing the appeal in time
  • A negative order of dismissal is incapable of execution and therefore incapable of stay
  • The court's inherent discretion must be exercised judiciously and upon reason, not arbitrarily

Court orders

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  1. 1.The notice of motion is hereby dismissed with costs to the respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 22(3)
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSections 1A, 1B, 3A, 79G, 95
  • Civil Procedure RulesOrder 22 Rule 22; Order 42 Rule 6(1)
  • Environment and Land Court ActSection 16A(2)

Cases cited (4)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR

    Principles for granting leave to appeal out of time

  • Jaber Mohsen Ali & another v Priscillah Boit & another
    [2014] eKLR

    What constitutes unreasonable delay in filing an application

  • Christopher Kendagor v Christopher Kipkorir
    Eldoret E&L 919 of 2012

    Application filed after expiry of period given to vacate land denied

  • Raymond M. Omboga v Austine Pyan Maranga
    Kisii HCCA No 15 of 2010

    A dismissal is a negative order incapable of execution or stay

On appeal from
Principal Magistrate's Court at Ukwala
Ukwala ELC No. 5 of 2018
Jurisdiction invoked
Articles 22(3) and 159(2)(d) of the Constitution; sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act; section 16A(2) of the Environment and Land Court Act; Order 22 Rule 22 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, "Oduor (Suing as the administrator of the Estate of Lucas Oduor Omondi) v Awino & 2 others", Case Analysis (2023). Environment & Land Miscellaneous Case E015 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16309/eng@2023-03-16

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