Omori v Onsongo (Environment and Land Appeal E012 of 2023) [2024] KEELC 6194 (KLR)

Environment and Land Court

25 September 2024

MSMUNYAO SILA

1,108 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~4 min to read original · ~4 min brief

The bottom line

A Kenyan court paused eviction from disputed land, but only until the landowner deposits Kshs. 200,000 and taxed costs within 60 days.

What this practically means

Executive summary

This was a ruling on a notice of motion dated 12 March 2024 seeking stay of execution of the Environment and Land Court's judgment of 28 February 2024, pending a second appeal to the Court of Appeal. The underlying dispute concerned land parcel West Kitutu/Bomatara/3176: the respondent sued for eviction, claiming ownership; the applicant claimed he had purchased the land from the respondent's father and held a title deed. The magistrates' court entered judgment for the respondent on 5 April 2023 ordering vacant possession within 90 days. The ELC, on first appeal, upheld that decision on 28 February 2024 and ordered vacant possession within 14 days. The applicant filed a Notice of Appeal and this application under Order 42 Rule 6 of the Civil Procedure Rules, 2010, citing prejudice, triable issues, high chances of success and the constitutional right of appeal. The respondent filed no replying affidavit or grounds of opposition, only submissions. The court held that submissions alone are not a recognised mode of opposition under Order 51 Rule 14 and that an unopposed application may be heard ex parte. On the three Order 42 Rule 6 conditions, the court found no unreasonable delay, found substantial loss since the applicant lives on the land with his home thereon, and directed security: a deposit of Kshs. 200,000/= plus taxed costs, both within 60 days, in court or a joint interest-earning account. Non-compliance permits execution; compliance makes the application's costs costs in the appeal. Judgment delivered at Kisii on 25 September 2024.

Key legal issues

Whether the application was brought without unreasonable delay

Holding

The application was filed within reasonable time, barely a month after the judgment.

Reasoning

The court found the application filed barely a month after the 28 February 2024 judgment, satisfying the delay requirement under Order 42 Rule 6(2)(a).

p. 2

Whether the applicant demonstrated substantial loss

Holding

Yes - the applicant is in possession with his home on the land and stands to suffer substantial loss if evicted and he later succeeds on appeal.

Reasoning

The applicant resides on the land with his home thereon. Eviction could result in demolition of his home and substantial change to the character of the land which could not be undone if he succeeds on appeal. However, the respondent's interest in enjoying the fruits of her judgment if the appeal fails also had to be weighed, requiring a balance through security.

p. 2

Whether the respondent could oppose the application by submissions alone without filing a replying affidavit or grounds of opposition

Holding

No. Order 51 Rule 14 requires a preliminary objection, replying affidavit and/or grounds of opposition; submissions filed without any of these do not constitute opposition.

Reasoning

The court held that Order 51 Rule 14 exhaustively lists the modes of opposing an application, and a respondent who files none of them cannot oppose by submissions; in such a case the application may be heard ex parte. The court accordingly assessed the application on the material filed by the applicant, while noting the respondent's submissions.

p. 2

Legal principles established

A party wishing to oppose an application in the High Court must file a preliminary objection, replying affidavit and/or grounds of opposition; submissions alone are not a recognised mode of opposition, and without any such filing the application may be heard ex parte.
Stay of execution requires no unreasonable delay, demonstration of substantial loss, and furnishing of security.

Court orders

1.Applicant to deposit Kshs. 200,000/= in court or in a joint interest earning account as security within 60 days
2.Applicant to also deposit the taxed costs within 60 days of taxation, either in court or in the same joint interest earning account
3.If the applicant fails to comply, the decree may be executed and the applicant loses the benefit of the stay
4.If the applicant complies, costs of the application shall be costs in the appeal; if he fails, the application stands dismissed with costs

Authorities

Legislation

Civil Procedure Rules, 2010Order 42 Rule 6
Civil Procedure Rules, 2010Order 51 Rule 14

On appeal from: Magistrates' Court; Not stated
Jurisdiction invoked: Order 42 Rule 6 of the Civil Procedure Rules, 2010

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Omori v Onsongo (Environment and Land Appeal E012 of 2023) [2024] KEELC 6194 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6194/eng@2024-09-25

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