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ELCStruck OutEnvironment and Land Appeal 24 of 2021· [2023] KEELC 18377 (KLR)

Oginga v Orera (Suing as the Legal Representative of the Estate of Selina Aoko Mbeche - Deceased)

Environment and Land Court
20 June 2023
GOGMA Ongondo
1,158 words in judgment
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The bottom line

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Once a Kenyan court delivers judgment and an appeal is filed, only the Court of Appeal can grant a stay of execution.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Homa Bay (GMA Ongondo, J) determines a notice of motion dated March 7, 2023 by Lucy Akeyo Oginga, the appellant/applicant, seeking stay of execution of the court's own judgment delivered February 15, 2023, the subsequent decree and all further proceedings, pending an intended appeal, together with costs. The application was brought under order 9 rules 9 and 10 and order 42 rule 6 of the Civil Procedure Rules, 2010, the applicant asserting she had filed a notice of appeal on February 28, 2023 and that eviction and demolition of her construction could not be compensated by damages. The respondent opposed through grounds of opposition, contending the court was functus officio after judgment, that the application belonged to the Court of Appeal where the notice of appeal had been lodged, and that it was res judicata given the ruling of October 26, 2021. In written submissions, the applicant relied on order 42 rule 6(2) and Moi High School Kabarak v Bell; the respondent relied on section 7 of the Civil Procedure Act and Butt v Rent Restriction Tribunal. The court acknowledged the triple cumulative stay conditions (substantial loss, delay, security) but upheld the jurisdictional objection, citing Republic v Karisa Chengo on the voiding effect of lack of jurisdiction, Kakuta Maimai Hamisi, and the Goldenberg case on parallel hearings. It struck out the application as devoid of jurisdiction and ordered costs to abide the outcome of the appeal at the Court of Appeal.

Key legal issues

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01

Jurisdiction of the ELC over a stay application following its own judgment and the filing of a notice of appeal

Holding

The court is functus officio after delivering judgment and, a notice of appeal having been filed, the stay application falls to the Court of Appeal; the ELC is devoid of jurisdiction

Reasoning

The respondent objected that the court had pronounced judgment on February 15, 2023 and was therefore functus officio, and that with a notice of appeal lodged on February 28, 2023 the application could only be canvassed in the Court of Appeal. Relying on Karisa Chengo on the voiding effect of lack of jurisdiction and the Goldenberg case against parallel hearings, the court struck out the application.

p. 3
02

Conditions for stay of execution under order 42 rule 6(2)

Holding

The court acknowledged the cumulative conditions of substantial loss, delay and security but did not reach their application because jurisdiction failed

Reasoning

The applicant had argued she satisfied the cumulative order 42 rule 6(2) conditions, relying on Moi High School Kabarak v Bell, and that eviction and demolition would not be compensable by damages. The court noted the triple conditions apply cumulatively within judicial discretion, and that by the notice of appeal an appeal was deemed lodged, but resolved the matter on jurisdiction alone.

p. 2

Legal principles established

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  • Lack of jurisdiction renders a court's decision void rather than merely voidable
  • The triple conditions for stay of execution under order 42 rule 6(2) - substantial loss, delay and security - apply cumulatively and within judicial discretion
  • A matter should not be heard by both the Court of Appeal and the trial court simultaneously

Court orders

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  1. 1.The notice of motion dated March 7, 2023 is struck out for want of jurisdiction
  2. 2.Costs of the application shall abide the outcome of the appeal at the Court of Appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 9 rules 9 and 10
  • Civil Procedure Rules, 2010Order 42 rule 6 (including rule 6(2) and 6(4))
  • Civil Procedure Rules, 2010Order 51 rule 16
  • Environment and Land Court ActSection 13(7)(a)
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 7

Cases cited (5)

  • Board of Governors, Moi High School Kabarak and another v Malcolm Bell
    (2013) eKLR

    Conditions for grant of stay of execution under order 42 rule 6(2)

  • Butt v Rent Restriction Tribunal
    (1979) eKLR

    Discretionary power of the court to grant stay; the appellant's undoubted right of appeal

  • Republic v Karisa Chengo and 2 others
    (2017) KLR

    Lack of jurisdiction renders a decision void, not merely voidable

  • Kakuta Maimai Hamisi v Peris Pesi Tobiko and 2 others
    (2013) eKLR

    A court cannot consider an appeal on its merits where jurisdiction is wanting

  • Judicial Commission of Inquiry into the Goldenberg Affair and 3 others v Kilach
    (2003) KLR

    The same matter should not be heard by two courts simultaneously

Jurisdiction invoked
Order 42 rule 6 and Order 9 rules 9 and 10, Civil Procedure Rules, 2010; section 13(7)(a) Environment and Land Court Act - the court ultimately held it was devoid of jurisdiction over the application

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, "Oginga v Orera (Suing as the Legal Representative of the Estate of Selina Aoko Mbeche - Deceased)", Case Analysis (2023). Environment and Land Appeal 24 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18377/eng@2023-06-20

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