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ELCPartially AllowedEnvironment & Land Case 749 of 2017· [2023] KEELC 18159 (KLR)

Otieno (Suing as the Personal Representative of Johana Kawa Nyagigo & Benjamin Otieno Kawa - Both (Deceased)) v Odira & 2 others

Environment and Land Court
13 June 2023
1,757 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan land court paused eviction for 60 days, but only because the losing party promised to quickly file his appeal.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Migori (MN Kullow, J) on a Notice of Motion dated March 28, 2023 in which the plaintiff, suing as personal representative of two deceased persons, sought stay of execution of the judgment and decree of February 16, 2023 - which had dismissed his case and ordered him and the beneficiaries of the estates to vacate a portion of LR No Kanyamkago/Kajulu/2063 within 90 days - pending an intended appeal to the Court of Appeal. The defendants opposed via a Statement of Grounds of Opposition, arguing the application failed the Order 42 Rule 6 conditions, particularly substantial loss. Framing a single issue, the court applied the three conditions in Order 42 Rule 6(2). It found substantial loss demonstrated because execution would render the plaintiff, his family and other beneficiaries homeless and destitute while they remained in occupation. The 42-day delay in filing was held not inordinate despite the absence of an explanation, and the applicant's expressed willingness to abide by security conditions satisfied the third element. Noting that only a Notice of Appeal had been filed with no memorandum of appeal on record, the court acknowledged the dangers of granting a stay at that stage but issued a conditional stay of 60 days, conditioned on the applicant filing the memorandum of appeal within 15 days and then applying to the Court of Appeal for extension of the stay, failing which the stay would automatically lapse. Costs were ordered to abide the appeal.

Key legal issues

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01

Whether substantial loss was demonstrated

Holding

Yes - execution would render the plaintiff and his family homeless and destitute

Reasoning

The court noted its judgment ordered the plaintiff and beneficiaries to vacate the suit parcel within 90 days, and that they remain in occupation. Execution would render them homeless and destitute, which constitutes substantial loss under Order 42 Rule 6(2).

02

Whether the application was filed without unreasonable delay

Holding

Yes - 42 days' delay was not inordinate despite lack of explanation

Reasoning

The application was filed on March 28, 2023, one month and twelve days after the February 16, 2023 judgment. Although no explanation was given for the 42-day delay, the court held it was not inordinate.

p. 3
03

Whether security for due performance of the decree was given

Holding

Yes - applicant expressed readiness to abide by fair and just conditions on security

Reasoning

At paragraph 12 of the supporting affidavit the applicant demonstrated readiness and willingness to abide by any fair and just conditions the court may set on security for costs, satisfying the third element.

p. 3
04

Whether a stay should issue where the appeal itself is not yet shown to be filed

Holding

Yes, but only conditionally - a 60-day stay conditional on filing the memorandum of appeal within 15 days

Reasoning

Only a Notice of Appeal was annexed; no memorandum of appeal was on file. The court acknowledged the dangers of granting a stay at that stage but balanced the right of appeal against the respondents' right to enjoy the fruits of judgment, issuing a conditional, time-limited stay.

p. 4

Legal principles established

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  • The purpose of a stay of execution is to preserve the substratum of the appeal so it is not rendered nugatory
  • Stay requires substantial loss, absence of unreasonable delay, and security for due performance of the decree

Court orders

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  1. 1.An Order for Stay of Execution of the Decree and Judgment dated February 16, 2023 together with all consequential orders arising therefrom be and is hereby issued for a period of 60 days.
  2. 2.The Applicant is hereby ordered to file the Memorandum of Appeal at the Court of Appeal within 15 days and thereafter file an Application seeking the extention of the stay orders issued herein at the Court of Appeal.
  3. 3.Failure to comply with order (b) hereinabove, Order (a) hereinabove shall automatically lapse.
  4. 4.Costs of the Application to abide the Appeal.
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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 (Suing as the Personal Representative of Johana Kawa Nyagigo & Benjamin Otieno Kawa - Both (Deceased)) v Odira & 2 others", Case Analysis (2023). Environment & Land Case 749 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18159/eng@2023-06-13

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