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ELCDismissedNotice of Motion dated 9th November 2023 (in appeal from judgment of Hon. Nicodemus Moseti delivered 21st June 2023)· [2024] KEELC 1389 (KLR)

Owano v Jera (Environment and Land Appeal E015 of 2023) [2024] KEELC 1389 (KLR)

Environment and Land Court
7 March 2024
1,174 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to stop execution of a judgment because the appellant missed deadlines, proved no loss, and offered no security.

What this practically means

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Executive summary

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This was a Notice of Motion dated 9th November 2023 by Dennis Okumu Owano, the applicant/appellant, seeking stay of execution of the judgment of Hon. Nicodemus Moseti delivered on 21st June 2023, quashing of an order of 6th November 2023 committing him to civil jail, and his release from Homa Bay Remand Prison, pending hearing of his appeal. The respondent, Nathaniel Oyugi Jera, opposed the application by grounds of opposition and a further affidavit exhibiting a consent order recorded before the trial court on 5th January 2024, under which the judgment debtor was to pay the decretal sum in instalments, failing which the whole amount would become due in one execution. The court directed written submissions, but counsel did not file and serve submissions as directed. The court applied Order 42 Rule 6(4) of the Civil Procedure Rules, 2010, holding that the conditions for stay - substantial loss, delay and security - are cumulative. The applicant asserted he would suffer irreparably but demonstrated no substantial loss; there was an unexplained delay of three months and ten days; and no security such as a banker's bond was offered. The court further held that parties are bound by the consent order, which could only be set aside on grounds justifying setting aside a contract, and no coercion, fraud or undue influence was disclosed. The applicant's committal to civil jail was held to be in lawful execution of the decree and consent order, and the successful litigant's right to enjoy the fruits of the judgment could not be suspended. The application was dismissed with costs to abide the outcome of the appeal.

Key legal issues

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01

Whether the applicant satisfied the conditions for stay of execution pending appeal

Holding

The applicant failed to satisfy the cumulative conditions of substantial loss, explanation for delay and offer of security

Reasoning

Order 42 Rule 6(4) requires substantial loss, delay and security cumulatively. The applicant demonstrated no substantial loss beyond a bare assertion of irreparable harm; there was an unexplained delay of three months and ten days between the judgment of 21st June 2023 and the application of 9th November 2023; and no security such as a banker's bond was offered. Substantial loss is the cornerstone of the jurisdiction and delay of even a day requires a plausible and satisfactory explanation.

p. 2
02

Whether the consent order recorded before the trial court bound the applicant

Holding

The consent order bound the parties and had not been set aside; the committal to civil jail was in execution of the decree and consent order

Reasoning

The consent order provided for instalment payments of the decretal sum, with default triggering execution for the whole outstanding amount. No coercion, fraud or undue influence was disclosed to justify setting it aside. The applicant was therefore properly committed to civil jail upon default and there was no basis for suspending the respondent's right to enjoy the fruits of the judgment.

p. 3

Legal principles established

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  • The conditions for stay of execution under Order 42 Rule 6(4) - substantial loss, delay and security - are cumulative and must all be satisfied
  • A consent order binds the parties and can only be set aside on the same grounds as would justify setting aside a contract, such as coercion, fraud or undue influence
  • A successful litigant should not be deprived of the fruits of the judgment without basis

Court orders

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  1. 1.The application dated 9th November 2023 is dismissed
  2. 2.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(4)
  • Civil Procedure Rules, 2010Order 42
  • Civil Procedure Rules, 2010Order 50

Cases cited (8)

  • Trust Bank Ltd-vs-Ajay Shah and 3 others
    (2019) eKLR
  • Kenya Shell Ltd-vs-Benjamin Karuga Kibiru and another
    (1986) eKLR
  • Andrew Kiplangat Chemaringo-vs-Paul Kipkorir Kibet
    (2018) eKLR
  • Raphael Musila Mutiso & 3 others-vs-Joseph Ndava Nthuka and another
    (2019) eKLR
  • Halai and Another-vs-Thorton & Turpin (1963) Ltd
    (1990) eKLR
  • Brooke Bond Liebeg (T) Ltd-vs-Mallya
    (1975) EA 266
  • Flora Wasike-vs-Destimo Wamboko
    (1988) KLR 429
  • National Bank of Kenya Ltd-vs-Pipe Plastic Samkolit Ltd and another
    (2002) EA 503
On appeal from
Magistrates' Court (trial court, Homa Bay)
null
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (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, "Owano v Jera (Environment and Land Appeal E015 of 2023) [2024] KEELC 1389 (KLR)", Case Analysis (2024). Notice of Motion dated 9th November 2023 (in appeal from judgment of Hon. Nicodemus Moseti delivered 21st June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1389/eng@2024-03-07

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