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ELCAllowedEnvironment & Land Case 25 of 2021· [2023] KEELC 21184 (KLR)

Saka & 2 others v Otieno & 2 others

Environment and Land Court of Kenya
2 November 2023
AKA. Y. Koross
1,596 words in judgment
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The bottom line

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A Siaya land court paused execution of a judgment because the losing party showed he could suffer substantial loss, but only after depositing Kshs. 200,000 as security.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Siaya (A. Y. Koross, J) on the 2nd defendant's notice of motion dated 2/05/2023 seeking stay of execution of the court's judgment and decree of 20/04/2023 pending an intended appeal to the Court of Appeal. The motion was brought under Sections 1A, 1B, 3, 3A, 63(c) and 79G of the Civil Procedure Act and Order 42 Rule 6(1) of the Civil Procedure Rules. The 2nd defendant, Habakuk Onyango Abogno, who is in occupation of East Gem/Ramula/206, argued the appeal would be rendered nugatory and he risked substantial loss and eviction if the land was transferred to the plaintiffs. The plaintiffs, through counsel Ruth Otieno's replying affidavit, opposed the motion as incompetent, noting no memorandum of appeal had been filed and that they were in occupation. The court framed a single issue: whether the 2nd defendant demonstrated entitlement to stay. Applying Order 42 Rule 6 and the Halai v Thornton & Turpin conditions, the court found the application filed timeously (about two weeks after judgment), that substantial loss was the cornerstone and was demonstrated given the risk of transfer and eviction, and that the applicant willingly offered security. Fixing security at Kshs. 200,000/= in a joint interest-earning account of counsel, the court allowed the motion, granted stay pending the intended appeal, and ordered costs in the course.

Key legal issues

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Whether the 2nd defendant satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6

Holding

The motion was filed timeously, substantial loss was shown as the suit land in the 2nd defendant's name would be transferred to the plaintiffs, and the applicant was willing to furnish security; stay was granted.

Reasoning

The court applied the three conditions in Order 42 Rule 6: no unreasonable delay (motion filed about two weeks after judgment of 20/04/2023), substantial loss (risk of transfer of the suit land and eviction), and security (a deposit of Kshs. 200,000/= in a joint interest-earning account). The overriding objective required balancing the parties' rights.

Legal principles established

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  • Substantial loss is the cornerstone upon which an application for stay of execution can be granted
  • The purpose of stay of execution is to preserve the substratum of the case

Court orders

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  1. 1.Stay of execution of the judgment/decree granted pending hearing and determination of the 2nd defendant's intended appeal
  2. 2.The 2nd defendant to deposit security of Kshs. 200,000/= in a joint interest earning account of both parties' counsel within 21 days, failing which the stay orders automatically lapse
  3. 3.Costs shall be in the course
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 63(c) and 79G of the Civil Procedure Act and Order 42 Rule 6(1) 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, "Saka & 2 others v Otieno & 2 others", Case Analysis (2023). Environment & Land Case 25 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21184/eng@2023-11-02

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