[2023] KEELC 73 (KLR)
The court found that the appellant had resided on the suit property with his family since 2004 and that eviction would cause substantial loss. The application for stay was made within 10 days of judgment, which was not considered inordinate delay. The appellant expressed willingness to provide security for costs....
Source-derived case information.
- Citation
- [2023] KEELC 73 (KLR)
- Parties
- Appellant: Walter Osuwo Ndalo; Respondent: Rose Amolo Sireno
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 26 of 2018
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted pending determination of appeal, conditional on deposit of security for costs.
- Judges
- A Ombwayo
- Legal Topics
- Stay of Execution, Security for Costs, Substantial Loss, Delay in Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Walter Osuwo Ndalo
Appellant
Rose Amolo Sireno
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the judgment pending determination of the appeal.
- 2 Whether the appellant has demonstrated substantial loss may result if stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that the appellant had resided on the suit property with his family since 2004 and that eviction would cause substantial loss. The application for stay was made within 10 days of judgment, which was not considered inordinate delay. The appellant expressed willingness to provide security for costs. Applying Order 42 Rule 6(2) of the Civil Procedure Rules, the court was satisfied that the requirements for grant of stay of execution were met: substantial loss was demonstrated, the application was timely, and security was offered. Consequently, the court granted a stay of execution of the judgment pending determination of the appeal, conditional upon the appellant depositing...
Court Disposition
Stay of execution granted pending determination of appeal, conditional on deposit of security for costs.
Orders
- A stay of execution of the judgment delivered on July 15, 2022 is granted pending hearing and determination of the appeal at Kisumu.
- The appellant shall deposit in court security for costs valued at KES 100,000 or cash of similar amount within 30 days.
Full Case Text
Judgment text and source record
28 paragraphs
Ndalo v Sireno (Environment and Land Appeal 26 of 2018) [2023] KEELC 73 (KLR) (19 January 2023) (Ruling)
Neutral citation: [2023] KEELC 73 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisumu
Environment and Land Appeal 26 of 2018
A Ombwayo, J
January 19, 2023
Between
Walter Osuwo Ndalo
Appellant
and
Rose Amolo Sireno
Respondent
((An appeal from judgment of Principal Magistrates Court at Bondo delivered by Hon. M.O. Obiero PM on 15th October 2018 in Bondo ELC No. ELC No. 11 of 2018)
Ruling
1. The application before court in dated July 27, 2022. The appellant seeks orders that pending hearing determination of appeal at Kisumu, a stay of Execution do issue on the judgment delivered on July 15, 2022. The application is based on grounds that the appellant has lived on the suit property with family since the year 2004 hence Execution of the court order will really cause substantial loss and irreparable damage to the applicant applicant/appellant.
2. The appellant is willing to comply with any term given by the court as a condition for the stay. The respondent in response states that this court cannot sit on its judgment on appeal and that the application is a delay tactic to deny the respondent fruits of its judgment.
3. I have considered the application and response and do find that it is not disputed that the appellant resides on the suit property since the year 2004 with his family. It is not disputed that the appellant home is adjacent to the respondent home. I do agree with the appellant if evicted from the home the appellant will suffer substantial loss.
4. The appellant has not come to court with inordinate delay as judgment was made on July 15, 2022. A 10-day lapse is not inordinate delay in the circumstances of this case. The appellant is willing to give security.Order 42 rule 6 (2) provides:-6. Stay in case of appeal [Order 42, rule 6. ](2) No order for stay of execution shall be made under subrule (1) unless—(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
(2) No order for stay of execution shall be made under subrule (1) unless—(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
5. I am inclined to grant stay of Execution of the order of the court granted on July 15, 2022. I do grant orders that pending hearing determination of appeal at Kisumu, a stay of Execution do issue and is hereby issued on the judgment delivered on July 15, 2022 on condition that the appellant deposits in court security for costs valued at ksh One Hundred Thousand (ksh 100,000) or Cash of similar amount, within the next 30 days. Costs of the application to be in the appeal.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 19TH DAY OF JANUARY 2023. A O OMBWAYOJUDGE