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ELCAllowedEnvironment and Land Appeal 19 of 2023

Mose Kobe & 2 others v John Ochieng Osewe

Environment and Land Court of Kenya
21 November 2023
1,138 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court halted an eviction and blocked interference with disputed land because executing the decree would have made the appeal pointless.

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 16th May 2023 by the three appellants, who had appealed against a judgment of the Oyugis Principal Magistrate's Court in Oyugis PMC MCELC No. 77 of 2021 delivered on 30th March 2023 in favour of the respondent, who had obtained an eviction order dated 10th May 2023 over LR No. Central Kasipul/Sino/393. The applicants sought stay of execution of the decree pending the hearing and determination of Civil Appeal No. 19 of 2023, together with a temporary injunction restraining the respondent from trespassing on or dealing with the suit land, with costs to abide the appeal. The respondent, appearing in person, opposed the application. The court identified the triple conditions under Order 42 Rule 6 of the Civil Procedure Rules, 2010: substantial loss, absence of delay, and security. It found substantial loss established because execution would render the appeal nugatory; that the application filed six days after the order was not inordinately delayed; and that the security requirement lay within the court's discretion, the applicants having expressed willingness to offer security. Applying Giella v Cassman Brown, Nguruman and Hutchings Biemer on injunctions, and invoking its inherent jurisdiction under sections 3 and 3A of the Civil Procedure Act and sections 3 and 13(7)(a) of the Environment and Land Court Act, the court allowed the application in terms of prayers (c), (d) and (e): stay of execution, temporary injunction, and costs to abide the appeal.

Questions the Court framed

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

  1. 1.Whether the applicants established substantial loss to warrant stay of execution of the decree in Oyugis PMC MCELC No. 77 of 2021 pending appeal
  2. 2.Whether the application was brought without delay
  3. 3.Whether the applicants offered security for the due performance of the decree
  4. 4.Whether a temporary injunction against the respondent should issue pending the hearing and determination of the appeal

Key legal issues

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01

Substantial loss

Holding

The applicants established substantial loss because execution of the decree and eviction order would render the appeal nugatory

Reasoning

The court found that the respondent had obtained a decree and eviction order following the trial court's judgment of 30th March 2023 and was set to execute. Since the suit land was the applicants' livelihood, execution would render the pending appeal nugatory, satisfying the first condition under Order 42 Rule 6 and the special circumstances recognised in the Butt case.

p. 3
02

Delay

Holding

The application, filed six days after the order, was not inordinately delayed

Reasoning

Applying Order 50 of the Civil Procedure Rules, 2010 on computation of time, the court noted the decree or order was given on 10th May 2023 and the application was commenced six days later, which it held was not inordinate delay, satisfying the second condition for stay.

p. 2
03

Security

Holding

The applicants expressed willingness to offer security; the requirement is within the court's discretion

Reasoning

The applicants deponed that they were ready and willing to offer such security as the court deemed fit. The court, citing Halai & Another v Thornton & Turpin (1963) Ltd, held that the security requirement under Order 42 Rule 6 is within the discretion of the court, and granted the application in its entirety.

p. 2
04

Temporary injunction pending appeal

Holding

A temporary injunction was granted against the respondent pending the appeal, applying the Giella principles

Reasoning

The court applied Order 40 of the Civil Procedure Rules, 2010 and the Giella v Cassman Brown triple requirements, noting that the foundation of injunctive jurisdiction includes the probability of irreparable injury (Nguruman) and that injunctive orders preserve the suit property and maintain the status quo (Hutchings Biemer). It allowed the injunction sought.

p. 3

Legal principles established

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  • Stay of execution requires substantial loss, absence of inordinate delay and security, with security being a matter of the court's discretion
  • The ELC has inherent and special jurisdiction to grant stay of execution to safeguard the character and integrity of the subject matter of the appeal

Court orders

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  1. 1.Stay of execution of the decree in Oyugis PMC MCELC No. 77 of 2021, together with all consequential orders arising therefrom, pending the hearing and determination of Civil Appeal No. 19 of 2023
  2. 2.Temporary injunction restraining the respondent, his agents, servants and/or employees from trespassing onto, interfering with and/or dealing with LR No. Central Kasipul/Sino/393 pending the hearing and determination of Civil Appeal No. 19 of 2023
  3. 3.Costs of the application to abide the outcome of the appeal

The bench

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

majority

Wrote the judgment

On appeal from
Oyugis Principal Magistrate's Court
MCELC No. 77 of 2021
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act (Cap 21) as read with sections 3 and 13(7)(a) of the Environment and Land Court Act, 2015; Order 42 Rule 6 of the Civil Procedure Rules, 2010

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.

In the result, the application dated 16th May 2023, be and is hereby allowed in terms of the stay of execution, temporary injunction and costs to abide the outcome of this appeal sought therein and as stated in paragraph 1 (c ) (d) and (e) hereinabove.
p. 3Final orders - application allowed
It is the nding of this court that the applicants have established that they are bound to suer substantial loss as the respondent has obtained the order or decree and they are set to execute the same further to the trial court’s judgment delivered on 30th March 2023 thus, may render this appeal nugatory.
p. 3Substantial loss established
The decree or order in the trial court was given on 10th May 2023 and the instant application was commenced six days from that time. In the circumstances, the delay thereof is not inordinate.
p. 2No inordinate delay
injunctive orders are meant to preserve the suit property and maintain the status quo
p. 3Purpose of injunctive orders (quoting Hutchings Biemer)

Issues in the judgment

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minor

Contradictory description of the trial judgment - against vs in favour of the respondent

minor

Same contradiction in counsel's submissions

minor

Decree date confusion - judgment of 30th March 2023 vs 'decree or order... given on 10th May 2023'

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, "Mose Kobe & 2 others v John Ochieng Osewe", Case Analysis (2023). Environment and Land Appeal 19 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21695/eng@2023-11-21

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