Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedEnvironment and Land Appeal E018 of 2023· [2023] KEELC 20205 (KLR)

Omondi v Odongo

Environment and Land Court
26 September 2023
GOGMA Ongondo
1,546 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Homa Bay court paused an eviction order so a landowner's appeal can be heard, provided she deposits Kshs. 30,000 in court within 30 days.

What this practically means

#

Executive summary

#
This is a ruling by the Environment and Land Court at Homa Bay (GMA Ongondo, J) on a notice of motion dated April 14, 2023 by Alice Akinyi Omondi seeking stay of execution of a judgment and decree delivered on March 16, 2023 by the Oyugis court in Environment and Land Case No. 91 of 2018, which ordered her eviction from L.R. No. West Kasipul/Kodera Karabach/692. The applicant, who lodged an appeal on April 13, 2023, argued that execution would render the appeal nugatory and cause her substantial loss, relying on Butt v Rent Restriction Tribunal. The respondent opposed, alternatively seeking stay conditional on security for costs, proposing a deposit of Kshs. 1,000,000, and relied on Charles Kariuki Njuri v Francis Kimaru Rwara. The court framed two issues: whether the conditions for stay under Order 42 rule 6 were proved, and costs. Anchoring the decision on Articles 48 and 50(1) of the Constitution (access to justice and fair hearing) and citing James Kanyiita Nderitu and Onyango Oloo, the court found the impending eviction constituted special circumstances, the application was timeous, and the application was effectively unopposed subject to a security condition. Following Butt, the court held the application merited. It granted stay of execution pending the hearing and determination of the appeal, conditioned on the applicant depositing Kshs. 30,000 in court within thirty days, failing which the stay lapses automatically. Costs of the application were made costs in the appeal.

Key legal issues

#
01

Whether the conditions for stay of execution under Order 42 rule 6 were satisfied

Holding

The application met the requirements for stay: substantial loss via impending eviction, timeous filing, and security offered by condition of deposit.

Reasoning

The court found an impending eviction of the applicant from the suit land constituted special circumstances. The application was made timeously after the March 16, 2023 judgment. The respondent did not oppose the application subject only to a condition of security for costs, which the court addressed by ordering a deposit of Kshs. 30,000 within thirty days, failing which the stay lapses automatically.

02

Access to justice and fair hearing as constitutional anchors for stay

Holding

Articles 48 and 50(1) of the Constitution anchor the applicant's right of access to justice and fair hearing of the appeal.

Reasoning

The court held that the right to be heard before an adverse decision is fundamental and permeates the justice system, citing James Kanyiita Nderitu and Onyango Oloo. Executing eviction before the appeal is heard would defeat these constitutional guarantees and render the appeal nugatory.

p. 3

Legal principles established

#
  • Stay of execution pending appeal requires substantial loss, absence of unreasonable delay, and security for due performance of the decree.
  • The court's discretion on stay should be exercised so as not to render a successful appeal nugatory.

Court orders

#
  1. 1.Stay of execution of the judgment and decree of the subordinate court delivered on 16 March 2023 in Oyugis PMCC ELC No. 91 of 2018, together with all consequential proceedings and/or orders, granted pending the hearing and determination of the appeal
  2. 2.Applicant to deposit in court within thirty (30) days the sum of Kshs. 30,000 as security for the due performance of such decree or order as may ultimately be binding upon her, failing which the stay shall automatically lapse without further orders
  3. 3.Costs of the application to be costs in the appeal

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 27(1), 48, 50(1), 159, 165
  • Environment and Land Court Act, 2011Sections 13, 19
  • Civil Procedure ActSections 1A, 1B, 3A, 63(e), 75, 79G
  • Civil Procedure Rules, 2010Order 42 rule 6; Order 51 rule 16
  • Environment and Land Court Practice Directions, 2014Practice Direction No. 32

Cases cited (5)

  • Butt –vs- Rent Restriction Tribunal
    (1979) eKLR

    Discretion to grant stay should be exercised so the appeal, if successful, is not rendered nugatory.

  • Charles Kariuki Njuri –vs- Francis Kimaru Rwara (suing as administrator of Estate of Rwara Kimaru alias Benson Rwara Kimaru (deceased)
    (2020) eKLR
  • James Kanyiita Nderitu and another –vs- Marios Philotas Ghikas and another
    (2016) eKLR

    Right to be heard before an adverse decision is fundamental.

  • Onyango Oloo –vs- Attorney General
    (1986-89) EA 456

    Right to be heard before an adverse decision is fundamental.

  • Wilson –vs- Church (No. 2)
    12 Ch D (1879) 454

    Court ought to exercise best discretion so as not to prevent the appeal, if successful, from being nugatory.

On appeal from
Oyugis Senior Principal Magistrate's Court
Oyugis PMCC Environment and Land Case No. 91 of 2018
Jurisdiction invoked
Articles 27(1), 48, 50(1), 159 and 165 of the Constitution; sections 13 and 19 of the Environment and Land Court Act, 2011; sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 42 rule 6 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Omondi v Odongo", Case Analysis (2023). Environment and Land Appeal E018 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20205/eng@2023-09-26

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