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ELCAllowedNot stated in judgment (arising from Homa-Bay Chief Magistrate's Court Environment and Land Case No. E008 of 2023)· [2024] KEELC 5913 (KLR)

Sege v Ochola (Land Case Appeal E018 of 2024) [2024] KEELC 5913 (KLR)

Environment and Land Court
18 September 2024
GOG.M.A Ong'ondo
209 words in judgment
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The bottom line

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The Environment and Land Court in Homa Bay halted enforcement of a land judgment until the appeal is decided, since the appellant clearly has a right of appeal.

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 Homa Bay (G.M.A Ong'ondo, J) delivered on 18th September 2024 on a Notice of Motion dated 22nd April 2024 by the appellant/applicant, filed through H.O Mimba and Company Advocates. The application sought the principal order of stay of execution of the judgment and decree in Homa-Bay Chief Magistrate's Court Environment and Land Case No. E008 of 2023 pending the hearing and determination of the appeal. When the matter came up, Mr. Robert Ochieng, learned counsel for the respondent, did not oppose the principal order sought. The court therefore found it common ground that the applicant had a right of appeal and deserved the principal order. Relying on the Court of Appeal decision in Butt v Rent Restriction Tribunal (1979) eKLR, where the court noted that the appellant has an undoubted right of appeal, the court held that the application was merited and allowed the stay of execution, with costs of the application to abide the outcome of the appeal. The court further directed the applicant's counsel to file and serve the record of appeal within forty-five days and fixed mention of the appeal for 14th November 2024. The application was accordingly allowed in its entirety, with no relief refused.

Key legal issues

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01

Whether stay of execution should be granted pending appeal

Holding

The principal order of stay of execution was merited and was allowed with costs to abide the outcome of the appeal

Reasoning

The court found it common ground that the applicant had a right of appeal and deserved the principal order sought. Relying on Butt v Rent Restriction Tribunal, where the Court of Appeal noted the appellant's undoubted right of appeal, the court held the application merited and allowed the stay, with costs to abide the appeal and directions to file the record within 45 days.

p. 1

Legal principles established

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  • An appellant with an undoubted right of appeal deserves an order of stay of execution pending the appeal

Court orders

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  1. 1.Stay of execution of the judgment and decree in Homa-Bay Chief Magistrate's Court Environment and Land Case No. E008 of 2023 granted pending the hearing and determination of the appeal
  2. 2.Costs of the application to abide the outcome of the appeal
  3. 3.Applicant's counsel to file and serve the record of appeal within forty-five days from the date of the ruling
  4. 4.Mention of the appeal on 14th November 2024

Authorities

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Cases cited (1)

  • Butt versus Rent Restriction Tribunal
    (1979) eKLR
On appeal from
Homa-Bay Chief Magistrate's Court (Environment and Land Case)
E008 of 2023
Jurisdiction invoked
Not expressly stated in the judgment; stay of execution pending appeal from a subordinate court (appellate/stay jurisdiction of the Environment and Land Court)

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, "Sege v Ochola (Land Case Appeal E018 of 2024) [2024] KEELC 5913 (KLR)", Case Analysis (2024). Not stated in judgment (arising from Homa-Bay Chief Magistrate's Court Environment and Land Case No. E008 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5913/eng@2024-09-18

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