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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 25th April 2024, appeal from Oyugis MCELC 55 of 2019)· [2024] KEELC 5033 (KLR)

Rapemo v Orech (Environment and Land Appeal E015 of 2024) [2024] KEELC 5033 (KLR)

Environment and Land Court
2 July 2024
GOG. M. A. Ongondo
1,377 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court stopped an eviction because appeals must be heard before losing your home, provided modest security was deposited.

What this practically means

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Executive summary

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By a Notice of Motion dated 25th April 2024, Fleria Opiyo Rapemo, the applicant, sought a stay of execution of the judgment and decree in Oyugis MCELC 55 of 2019, pending the hearing and determination of her intended appeal. The trial court had, on 4th April 2023, found that she had encroached on the respondent's land parcel East Kasipul/Kokelo Dudi/356 and ordered her eviction. She argued she would suffer irreparable loss and the appeal would be rendered nugatory if the stay was not granted. The respondent opposed through grounds of opposition and submissions, contending the application did not meet the Order 42 Rule 6(2) threshold and that no draft memorandum of appeal had been annexed. The court identified two issues: whether a stay should issue pending appeal, and who should bear the costs. It confirmed an appeal had actually been filed via a memorandum of appeal dated 24th April 2024, anchored the applicant's right to be heard in Articles 48, 50(1) and 25(c) of the Constitution, and relied on the Court of Appeal decision in Butt v Rent Restriction Tribunal. Finding an impending eviction capable of occasioning substantial loss to be special circumstances, and noting the application was lodged twenty-one days after judgment without unreasonable delay, the court granted the stay pending appeal, conditional on the applicant depositing Kshs.30,000 as security within thirty days, failing which the stay lapses automatically. Costs were made costs in the appeal, and mention was set for 30th September 2024.

Key legal issues

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Whether the applicant satisfied the conditions for stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010

Holding

The application met the requirements: substantial loss was demonstrated by the impending eviction, the application was lodged without unreasonable delay (twenty-one days after judgment), and the applicant was directed to furnish security of Kshs.30,000

Reasoning

The court applied the statutory triple test in Order 42 Rule 6(2): substantial loss, absence of unreasonable delay and furnishing of security. The applicant faced imminent eviction from the suit land, which would occasion substantial loss and render the appeal nugatory. The application was filed twenty-one days after the judgment, which the court accepted as without unreasonable delay. The court exercised its discretion on security by ordering a deposit of Kshs.30,000 within thirty days, with the stay lapsing automatically on default.

p. 3

Legal principles established

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  • An impending eviction from suit land capable of occasioning substantial loss constitutes special circumstances attracting a stay of execution pending appeal
  • The court's discretion on stay should be exercised so as not to render a successful appeal nugatory

Court orders

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  1. 1.Stay of execution of the trial court's judgment and decree in Oyugis MCELC 55 of 2019 granted pending the hearing and determination of the appeal
  2. 2.Applicant directed to deposit in court within thirty (30) days the sum of Kshs.30,000 as security for due performance of the decree, failing which the stay shall automatically lapse without further orders
  3. 3.Costs of the application to be costs in the appeal
  4. 4.Mention on 30th September 2024 to confirm compliance and for directions
On appeal from
Oyugis Senior Principal Magistrate's Court (Environment and Land Case No. 55 of 2019)
55 of 2019
Jurisdiction invoked
Appellate jurisdiction over subordinate court decisions under Sections 75 and 79G of the Civil Procedure Act (Chapter 21, Laws of Kenya); stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010

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, "Rapemo v Orech (Environment and Land Appeal E015 of 2024) [2024] KEELC 5033 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 25th April 2024, appeal from Oyugis MCELC 55 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5033/eng@2024-07-02

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