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ELCAllowedEnvironment and Land Appeal E011 of 2023

Okidi v Opado & 2 others

Environment and Land Court
23 October 2023
GOGMA Ongondo
422 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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 (GMA Ongondo, J) on a Notice of Motion dated 21st September 2023 by the appellant, Henry Onyango Okidi, seeking stay of execution of the judgment of the trial court delivered on 24th August 2022 in Oyugis Senior Principal Magistrate's Environment and Land case No. 33 of 2021, pending the hearing and finalization of his appeal. The three respondents, through Omuthe and Company Advocates, opposed the application by a replying affidavit sworn on 26th September 2023 by the 1st respondent. At the hearing, however, Mr Omuthe informed the court that the application could be compromised to pave the way for the hearing of the appeal, and Mr Nyakwamba, counsel for the appellant, raised no objection. Invoking Article 159(2)(b) of the Constitution and section 3 of the Environment and Land Court Act, 2015, the court determined the application on consent terms: it granted a stay of execution of the trial court's judgment pending the hearing and determination of the appeal; directed the parties to maintain the prevailing status quo over the suit land, Parcel No Central Kasipul/Kamuma/1767, with the respondents continuing in occupation; and ordered the appellant's counsel to file and serve the record of appeal on or before 4th December 2023 for directions. No costs order was made. The ruling is brief and consent-based, with no analysis of the usual stay conditions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether stay of execution of the trial court's judgment should issue pending the hearing and determination of the appeal

Key legal issues

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01

Whether stay of execution pending appeal should be granted

Holding

Stay of execution granted by consent, with the respondents continuing in occupation of the suit land as the prevailing status quo pending determination of the appeal.

Reasoning

The application was a Notice of Motion dated 21st September 2023 seeking stay of execution pending appeal. Counsel for both parties informed the court the application could be compromised to pave way for hearing of the appeal, with no objection from the appellant's counsel. The court, invoking Article 159(2)(b) and section 3 of the Environment and Land Court Act, granted stay and directed maintenance of the status quo.

p. 1

Legal principles established

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  • The court may determine a stay application on consent terms guided by the overriding objective under Article 159(2)(b) of the Constitution and section 3 of the Environment and Land Court Act.

Court orders

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  1. 1.Stay of execution of the trial court's judgment delivered on 24th August 2022 in Oyugis Senior Principal Magistrate's Environment and Land case No. 33 of 2021 pending the hearing and determination of the appeal
  2. 2.The appellant and the respondents to maintain the prevailing status quo over the suit land, Parcel No Central Kasipul/Kamuma/1767, with the respondents continuing in occupation pending the hearing and determination of the appeal
  3. 3.The appellant's counsel to file and serve the record of appeal on or before 4th December 2023 for directions

The bench

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One judgment of the whole court — no separate or dissenting opinions.

GO
majority

Wrote the judgment

On appeal from
Senior Principal Magistrate's Court, Oyugis
Oyugis Senior Principal Magistrate's Environment and Land case No. 33 of 2021
Jurisdiction invoked
Article 159(2)(b) of the Constitution of Kenya, 2010 and section 3 of the Environment and Land Court Act, 2015

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

There be stay of execution of the trial court’s judgment delivered on 24th August 2022 in Oyugis Senior Principal Magistrate’s Environment and Land case No. 33 of 2021 pending the hearing and determination of this appeal.
p. 2stay of execution pending appeal
The appellant and the respondents to maintain the prevailing status quo over the suit land, Parcel No Central Kasipul/Kamuma/1767 namely that the respondents to continue in occupation of the same pending the hearing and determination of the appeal.
p. 2status quo over suit land
The appellant’s counsel to file and serve record of appeal on or before 4th December 2023 for directions.
directions on filing record of appeal

Issues in the judgment

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minor

Inconsistent spelling of 1st respondent's name between cause title and body

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, "Okidi v Opado & 2 others", Case Analysis (2023). Environment and Land Appeal E011 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20918/eng@2023-10-23

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