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ELCAllowedKisumu MC. ELC NO. 168 of 2018 (appeal therefrom)· [2024] KEELC 3592 (KLR)

Odwar v Orengo (Environment and Land Appeal E42 of 2023) [2024] KEELC 3592 (KLR)

High Court of Kenya
25 April 2024
840 words in judgment
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The bottom line

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The High Court in Kisumu allowed a late land appeal, extending time and staying execution on condition the appellant deposits Kshs.100,000 as security.

What this practically means

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Executive summary

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This ruling of the High Court at Kisumu (E. Asati, J) determined a Notice of Motion dated 18th December 2023 brought by the applicant, David Odhiambo Odwar, seeking stay of execution of the judgment in Kisumu MC ELC No. 168 of 2018 (Josia Ogalo Orengo v David Odhiambo Odwar) delivered on 26th September 2023, leave to appeal out of time, and deemed filing of his draft Memorandum of Appeal. The application was anchored on the Judicature Act, the Law Reform Act, the Civil Procedure Act and Rules, and the High Court (Practice and Procedure) Rules. The respondent, Josiah Ogalo Orengo, opposed through a Replying Affidavit sworn on 22nd January 2024, contending the application was frivolous, vexatious, an abuse of process, and that no sufficient cause for the delay or grounds for stay under Order 42 had been shown. The court applied the proviso to section 79G of the Civil Procedure Act, which admits appeals out of time on good and sufficient cause. The applicant explained the delay by his unfulfilled requests for certified judgment and typed proceedings, including a letter dated 4th October 2023, and attached a draft Memorandum of Appeal. The court found the extension of time merited in the interest of justice. On stay, it found the arguable-appeal and nugatory-appeal grounds merited, but conditioned the stay on the applicant depositing Kshs.100,000/= as security in an interest-earning joint account of counsel within 30 days, failing which the stay lapses. Costs were awarded to the respondent.

Key legal issues

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01

Extension of time to file appeal

Holding

The applicant demonstrated good and sufficient cause by showing he requested certified proceedings and judgment and attached a draft Memorandum of Appeal; extension was merited in the interest of justice.

Reasoning

The court applied the proviso to section 79G of the Civil Procedure Act, which permits admission of an appeal out of time on good and sufficient cause. The applicant explained the delay by his unfulfilled request for certified judgment and typed proceedings, evidenced by a letter dated 4th October 2023. He also attached a draft Memorandum of Appeal showing an arguable intention to appeal. Balancing these factors, the court found the interest of justice favoured granting leave so the applicant could exercise his right of appeal.

p. 2
02

Stay of execution pending appeal

Holding

Stay of execution was merited, but conditional upon the applicant depositing security of Kshs.100,000/= within 30 days, failing which the stay lapses.

Reasoning

The stay was sought on the grounds that the applicant had an arguable appeal and that the appeal would be rendered nugatory absent stay. After considering the grounds, the Replying Affidavit and counsel's submissions, the court found the prayer merited but conditioned it on a security deposit in an interest-earning joint account in the names of counsel for both parties, within 30 days, as security for due performance of any decree ultimately binding on the applicant, failing which the stay lapses.

p. 2

Legal principles established

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  • An appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

Court orders

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  1. 1.Leave granted to the applicant to appeal out of time against the judgment dated 26/9/2023 in KSM MC ELC NO 168 OF 2018
  2. 2.The draft Memorandum of Appeal annexed to the application deemed to have been filed within time
  3. 3.Stay of execution of the judgment pending hearing and determination of the appeal on condition that the applicant deposits Kshs.100,000/= as security in an interest-earning account in the joint names of counsel for both parties within 30 days, failing which the stay shall lapse
  4. 4.Costs to the Respondent

Authorities

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Legislation

  • Judicature Actsections 2 and 10
  • Law Reform Actsections 8 and 9
  • Civil Procedure Actsections 1A, 1B, 3, 3A, 95 and 79G
  • Civil Procedure RulesOrder 42 Rule 6; Order 51 Rule 1
  • High Court (Practice and Procedure) RulesRule 3(1) and (2)
On appeal from
Kisumu Magistrates' Court (Environment and Land)
Kisumu MC. ELC NO. 168 of 2018
Jurisdiction invoked
Sections 2 and 10 of the Judicature Act; sections 8 and 9 of the Law Reform Act; sections 1A, 1B, 3, 3A and 95 of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; proviso to section 79G of the Civil Procedure Act

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, "Odwar v Orengo (Environment and Land Appeal E42 of 2023) [2024] KEELC 3592 (KLR)", Case Analysis (2024). Kisumu MC. ELC NO. 168 of 2018 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3592/eng@2024-04-25

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