[2024] KEELC 5897 (KLR)

Source-derived case information.

Citation: [2024] KEELC 5897 (KLR)
Parties: Appellant: Esau Ediwuor; Respondent: George Oner Ogalo; Respondent: Richard Ooko Stadi; Respondent: Land Surveyor, Homa-Bay County; Respondent: Land Registrar, Homa-Bay County; Respondent: Attorney General; Interested Party: Pamela Adhiambo Ojwang; Interested Party: Caroline Anyango Ouma
Court: Environment and Land Court
Court Station: Environment and Land Court at Homa Bay
Jurisdiction: Kenya
Case Number: Land Case Appeal E020 of 2024
Procedural Posture: Land Case Appeal / Stay Application Ruling
Outcome: Application for stay of execution allowed.
Judges: GMA Ongondo
Legal Topics: Stay of Execution, Right of Appeal, Appeal Procedure
Source Language: en

Land and Property Stay of Execution Right of Appeal Appeal Procedure

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Summary, issues, holding and outcome

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Parties

Esau Ediwuor

Appellant

George Oner Ogalo

Respondent

Richard Ooko Stadi

Respondent

Land Surveyor, Homa-Bay County

Respondent

Land Registrar, Homa-Bay County

Respondent

Attorney General

Respondent

Pamela Adhiambo Ojwang

Interested Party

Caroline Anyango Ouma

Interested Party

Procedural Posture

Land Case Appeal / Stay Application Ruling

Legal Issues

1 Whether the applicant is entitled to a stay of execution of the judgment and decree pending appeal.
2 Whether the application for stay meets the legal threshold.

Ratio Decidendi

The court found that the applicant has an undoubted right of appeal and that the application for stay of execution was properly served on all parties. The 1st respondent did not oppose the application, and the other respondents and interested parties did not respond. The court, applying the principle in Butt v Rent Restriction Tribunal (1979) eKLR, exercised its discretion to grant a stay of execution of the judgment and decree of the trial court pending the hearing and determination of the appeal. The court further ordered that there be no order as to costs, considering the lack of opposition.

Court Disposition

Application for stay of execution allowed.

Orders

Stay of execution of the judgment and decree in Homa-Bay Chief Magistrate’s Court Environment and Land Case No. E5 of 2022 pending hearing and determination of the appeal.
No order as to costs.

Full Case Text

Judgment text and source record

36 paragraphs

Ediwuor v Ogalo & 4 others; Ojwang & another (Interested Parties) (Land Case Appeal E020 of 2024) [2024] KEELC 5897 (KLR) (17 September 2024) (Ruling)

Neutral citation: [2024] KEELC 5897 (KLR)

Republic of Kenya

In the Environment and Land Court at Homa Bay

Land Case Appeal E020 of 2024

GMA Ongondo, J

September 17, 2024

Between

Esau Ediwuor

Appellant

and

George Oner Ogalo

1st Respondent

Richard Ooko Stadi

2nd Respondent

Land Surveyor, Homa-Bay County

3rd Respondent

Land Registrar, Homa-Bay County

4th Respondent

Attorney General

5th Respondent

and

Pamela Adhiambo Ojwang

Interested Party

Caroline Anyango Ouma

Interested Party

(Appeal from the Judgement and Decree of Hon. Joy Shiundu Wesonga (PM), Homa-Bay Magistrate Law Courts in HOMABAY CMC ELC NO. E5 OF 2022 delivered on 19th April 2024)

Ruling

1. In an application by way of Notice of Motion dated 10th July 2024, the applicant through, L. Rodi Orege and Company Advocates is seeking, inter alia, that there be stay of execution of the trial court’s judgment and decree in Homa-Bay Chief Magistrate’s Court Environment and Land Case No. E5 of 2022 delivered on 19th April 2024 pending the hearing and determination of this appeal.

2. Ms. B Ochieng for the 1st respondent has informed the Court that a response was filed to the application. That nonetheless, the stay Order sought in the application be granted with no order as to costs.

3. I have considered the application in entirety as well as heard Ms. B Ochieng for the 1st respondent and Mr. Okumu for the applicant.

4. The other respondents and interested parties were duly served as per affidavit of service sworn on 5th August 2024. They didn’t respond to the application.

5. The applicant has an undoubted right of appeal in the circumstances, see Butt-versus Rent Restriction on Tribunal (1979) eKLR.

6. Accordingly, the application is merited. The same is hereby allowed in terms of prayer No. 3 for stay of execution of Judgment and decree therein as stated in paragraph 1 herein above with no order as to costs.

7. It is so ordered.

RULING DELIVERED, DATED AND SIGNED THIS 17TH DAY OF SEPTEMBER 2024. G.M.A ONG’ONDOJUDGEIn the presence of;Mr. Okumu learned counsel for the Applicant.Ms. B. Ochieng learned counsel for the 1st Respondent.T. Luanga, Court Assistant

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