Orwa v Odoyo & 2 others (Environment and Land Appeal E035 of 2023) [2024] KEELC 931 (KLR)
The bottom line
#Kenya's Homa Bay Environment and Land Court paused eviction proceedings because a five-month delay in filing was explained and eviction would cause substantial loss.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should order a stay of execution of the judgment in Mbita Principal Magistrate's Court in Environment and Land Case No. 2 of 2019, pending the hearing and determination of the appeal
- 2.Who should bear the costs of this application
Key legal issues
#Whether the delay of almost five months in filing the application was satisfactorily explained
The delay was satisfactorily explained: the application was first filed at the trial court on 10th July 2023, dismissed on 27th September 2023, prompting the instant application on 1st November 2023.
The court noted judgment was delivered on 7th June 2023 and the memorandum of appeal filed on 30th June 2023, but the application was initiated on 1st November 2023. The applicant explained that an earlier application filed at the trial court on 10th July 2023 was dismissed on 27th September 2023, necessitating the present application. The court found this explanation satisfactory and noted defects in the supporting affidavit were cured by a further affidavit.
Whether the applicant demonstrated substantial loss
The impending eviction of the applicant from the suit land, which he has occupied since 1976, would occasion him substantial loss and constitutes special circumstances justifying stay.
The court accepted the applicant's contention that he risks eviction from the suit land, having occupied it since 1976, and that such eviction would render the appeal nugatory. It held these facts disclosed substantial loss and amounted to special circumstances that attract the stay order sought.
Whether security for the decree should be imposed as a condition of stay
The court, exercising its discretion under Order 42, directed the applicant to deposit Kshs.30,000 in court within thirty days as security, failing which the stay would automatically lapse.
The court held that security for costs is at its discretion under Order 42. It conditioned the stay on deposit of Kshs.30,000 within thirty days as security for the due performance of such decree or order as may ultimately be binding on the applicant, with automatic lapse of the stay upon default.
Legal principles established
#- The conditions for a stay of execution under Order 42 Rule 6(2) are substantial loss, application without unreasonable delay, and security for due performance of the decree.
- The court's discretion on stay should be exercised so as not to render a successful appeal nugatory.
- An impending eviction of the applicant from suit land constitutes special circumstances attracting a stay order.
Court orders
#- 1.Stay of execution of the judgment of Mbita Principal Magistrate's Court in Environment and Land Case No. 2 of 2019 delivered on 7th June 2023 and the consequential decree, pending the hearing and determination of the appeal
- 2.Applicant directed to deposit in court within thirty (30) days the sum of Kshs.30,000 as security for the due performance of the decree, failing which the stay shall automatically lapse
- 3.Costs of the application to be costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Mbita Principal Magistrate's Court (Environment and Land Case No. 2 of 2019)
- Environment and Land Case No. 2 of 2019
- Jurisdiction invoked
- Sections 75 and 79G of the Civil Procedure Act (Cap. 21) and Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, arising from an appeal against the Mbita Principal Magistrate's Court judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Wherefore, the stay order sought in the application dated 31st October 2023 as set out in paragraph 1(c) hereinabove, be and is hereby granted pending the hearing and determination of the instant appeal
Costs of this application be the costs in the appeal.
Clearly, Article 48 of the Constitution of Kenya, 2010 anchors the right of access to justice.
It is established law that the right to be heard before an adverse decision is taken against a person is fundamental and permeates the entire justice system
It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution.
Issues in the judgment
#The judgment refers to the 1st respondent's delay objection but the applicant is described inconsistently as applicant and appellant in the submissions record.
The ground (5) of the application and order (a) of the motion are recorded only as 'Moot', leaving the full relief sought incomplete in the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Orwa v Odoyo & 2 others (Environment and Land Appeal E035 of 2023) [2024] KEELC 931 (KLR)", Case Analysis (2024). Notice of Motion Application dated 31st October 2023 (Homa Bay ELC Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/931/eng@2024-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.