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ELCPartially AllowedApplication dated 02/01/2024 (Civil Appeal No. 33 of 2021 pending at the Court of Appeal, Nakuru)· [2024] KEELC 6461 (KLR)
Onsare v Kisilu & another (Enviromental and Land Originating Summons 457 of 2017) [2024] KEELC 6461 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#William Isaboke Onsare applied by notice of motion dated 02/01/2024 seeking extension of stay of execution orders issued by the Environment and Land Court at Nyahururu (Justice Angima) on 04/02/2021, pending the hearing of Civil Appeal No. 33 of 2021 at the Court of Appeal in Nakuru, and a stay of eviction proceedings. He averred that judgment was delivered on 22/10/2019, that he lodged an appeal in Nakuru, and that the earlier ruling had stayed execution of the decree for two years or until determination of the intended appeal, whichever came first, on condition he filed his substantial appeal within 90 days. He stated the appeal had been filed and that the respondent now sought to evict him. Mary Wambui Ndung'u opposed the application through a replying affidavit, contending it did not meet the settled principles for extension, that the two-year period had lapsed, and that she had applied on 15/01/2024 to evict the 1st Plaintiff from the suit land. Framing the sole issue as whether the stay orders issued on 04/02/2021 should be extended, the court noted the applicant did not show whether his appeal had been fixed for hearing or its stage. The court granted a limited stay of 45 days to enable the applicant to seek stay pending determination of his appeal from the Court of Appeal, and ordered each party to bear its own costs. The judgment was delivered virtually at Nyahururu on 3rd October 2024 by K. Bor, Judge.
Key legal issues
#01
Whether to extend the stay of execution orders issued on 04/02/2021
Holding
Extension granted only for a limited period of 45 days to allow the applicant to seek stay from the Court of Appeal
Reasoning
The applicant had filed his appeal but did not indicate whether it had been fixed for hearing or the stage it had reached. The respondent pointed out that the two-year stay period granted in the ruling of 04/02/2021 had lapsed and she had applied to evict the applicant. Balancing the positions, the court granted a 45-day stay to enable the applicant to pursue stay pending appeal before the Court of Appeal, which is now seized of the matter.
p. 2
Legal principles established
#- Where a stay of execution has lapsed by effluxion of time, the court may grant a short, time-limited stay to enable the applicant to obtain stay from the appellate court
Court orders
#- 1.The court grants the Plaintiff stay for 45 days to enable him seek stay pending determination of his appeal from the Court of Appeal
- 2.Each party will bear its costs
- On appeal from
- null
- null
- Jurisdiction invoked
- Inherent powers of the court to extend interim orders pending appeal (order made in the court's original suit; appeal pending before the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onsare v Kisilu & another (Enviromental and Land Originating Summons 457 of 2017) [2024] KEELC 6461 (KLR)", Case Analysis (2024). Application dated 02/01/2024 (Civil Appeal No. 33 of 2021 pending at the Court of Appeal, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6461/eng@2024-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.