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ELCStruck OutEnvironment and Land Appeal 18 of 2022

Obiero v Ogola

Environment and Land Court
28 November 2023
GOGMA Ongondo
1,050 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

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 by GMA Ongondo, J of the Environment and Land Court at Homa Bay on a notice of motion dated 15th March 2023 by the appellant, Joseph Obiero, seeking stay of execution and proceedings in ELC Appeal No. 18 of 2022 pending hearing and determination of his appeal, Kisumu COACA No. E059 of 2023, before the Court of Appeal, with costs to abide the cause. The application was anchored on Order 42 Rules 6 and 14 of the Civil Procedure Rules, 2010. The applicant asserted he had a prima facie appeal with high chances of success, had filed the record of appeal and paid security for costs, and had moved timeously. The respondent, Beatrice Ogola, through a replying affidavit sworn 12th April 2023, opposed the application as premature and ill-intentioned, noting a prior stay granted on 15th November 2022 and the late lodging of the memorandum of appeal, invoking the maxim that equity aids the vigilant. The parties filed written submissions and the applicant a further affidavit. The court considered the triple conditions under Order 42 Rule 6 but held that, the record of appeal having been filed in the Court of Appeal at Kisumu, that court was seized of the matter and the two courts could not hear it simultaneously, citing Halai v Thornton & Turpin and the Goldenberg Commission v Kilach. The court accordingly found itself devoid of jurisdiction, struck out the application, and ordered costs to abide the outcome of the Kisumu 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 application for stay of execution and proceedings pending the Kisumu appeal is meritorious

Key legal issues

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01

Whether the Environment and Land Court retains jurisdiction to grant stay of its own judgment where an appeal has been filed in the Court of Appeal

Holding

The court is devoid of jurisdiction; the Court of Appeal is seized of the matter once the record of appeal is filed there

Reasoning

Order 42 Rule 6 sets triple conditions for stay: substantial loss, no unreasonable delay, and security. However, the court noted the record of appeal had been filed in the Court of Appeal at Kisumu, which becomes seized of a matter upon filing under its Rules. Citing Goldenberg v Kilach, the court held the matter cannot be heard simultaneously by both courts, and accordingly the ELC lacks jurisdiction over the application.

p. 3

Legal principles established

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  • Once a record of appeal is filed in the Court of Appeal, that court is seized of the matter and the subordinate court cannot hear the matter simultaneously
  • Grant of stay of existing orders is not a matter of course; it requires urgency, merit and dispatch

Court orders

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  1. 1.The application dated 13th March 2023 struck out
  2. 2.Costs of the application to abide the outcome of Kisumu COACA No. E059 of 2023

The bench

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

GO
majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rules 6 and 14 of the Civil Procedure Rules, 2010; jurisdiction divested by pendency of the matter before the Court of Appeal

Relief refused

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Stay of execution and proceedings in ELC Appeal No. 18 of 2022 pending hearing of Kisumu COACA No. E059 of 2023

The Court of Appeal is seized of the matter, leaving this court devoid of jurisdiction over the application

p. 3

Costs

Costs of the application to abide the outcome of Kisumu COACA No. E059 of 2023

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.

Thus, this court is devoid of jurisdiction in respect of the instant application.
p. 3Lack of jurisdiction pending Court of Appeal appeal
Wherefore, I proceed to strike out the application dated 13th March 2023.
p. 3Final orders - striking out
Costs of the application to abide the outcome of Kisumu COACA No. E059 of 2023.
p. 3Costs order
Grant of stay of existing orders cannot be a matter of course. It rests upon genuine conditions of urgency, merit and dispatch
p. 2Stay of execution principles

Issues in the judgment

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minor

Date of application inconsistently stated

minor

Struck-out application given a different date

minor

Respondent's submissions recorded as asking that the application be found merited despite opposition

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, "Obiero v Ogola", Case Analysis (2023). Environment and Land Appeal 18 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21810/eng@2023-11-28

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