[2023] KEELC 20918 (KLR)
The court exercised its discretion to grant a stay of execution of the trial court's judgment, finding that the interests of justice required preservation of the subject matter pending appeal. The parties' mutual consent to compromise the application and maintain the status quo over the suit land was a significant...
Source-derived case information.
- Citation
- [2023] KEELC 20918 (KLR)
- Parties
- Appellant: Henry Onyango Okidi; Respondent: Philemon Onguru Opado; Respondent: Boaz Omondi Onguru; Respondent: Josephat Onguru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E011 of 2023
- Procedural Posture
- Environment and Land Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted; status quo to be maintained; directions for filing record of appeal issued.
- Judges
- GMA Ongondo
- Legal Topics
- Stay of Execution, Status Quo Orders, Appeal Procedure, Land Occupation Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Onyango Okidi
Appellant
Philemon Onguru Opado
Respondent
Boaz Omondi Onguru
Respondent
Josephat Onguru
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending the hearing and determination of the appeal.
- 2 Whether the status quo over the suit land should be maintained during the pendency of the appeal.
Ratio Decidendi
The court exercised its discretion to grant a stay of execution of the trial court's judgment, finding that the interests of justice required preservation of the subject matter pending appeal. The parties' mutual consent to compromise the application and maintain the status quo over the suit land was a significant factor. The court ordered that the respondents continue in occupation of the land and directed the appellant to file and serve the record of appeal by a specified date, ensuring orderly conduct of the appeal process and safeguarding the rights of both parties until final determination.
Court Disposition
Stay of execution granted; status quo to be maintained; directions for filing record of appeal issued.
Orders
- Stay of execution of the trial court’s judgment delivered on 24th August 2022 in Oyugis Senior Principal Magistrate’s Environment and Land case No. 33 of 2021 pending hearing and determination of the appeal.
- The appellant and respondents to maintain the prevailing status quo over Parcel No Central Kasipul/Kamuma/1767; respondents to continue in occupation pending appeal.
Full Case Text
Judgment text and source record
26 paragraphs
Okidi v Opado & 2 others (Environment and Land Appeal E011 of 2023) [2023] KEELC 20918 (KLR) (23 October 2023) (Ruling)
Neutral citation: [2023] KEELC 20918 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment and Land Appeal E011 of 2023
GMA Ongondo, J
October 23, 2023
Between
Henry Onyango Okidi
Appellant
and
Philemon Onguru Opado
1st Respondent
Boaz Omondi Onguru
2nd Respondent
Josephat Onguru
3rd Respondent
Ruling
1. In a Notice of Motion application dated 21st September 2023, the applicant/appellant, Henry Onyango Okidi through Nyakwamba and Company Advocates is seeking the orders infra:a.That thereafter the Honourable Court be pleased to make an order of stay of execution to stop any execution against the defendant/applicant until the appeal herein is heard and finalized.b.The costs of this application be provided for.
2. The three (3) respondents through Omuthe and Company Advocates, opposed the application by a replying affidavit sworn on 26th September 2023 by the 1st respondent, Philemon Ongutu Opando.
3. It is noteworthy that on 24th August 2022 the trial court delivered its judgment which provoked this application
4. Mr. Omuthe, learned counsel has informed this court that the application can be compromised to pave way for hearing of the appeal herein.
5. Mr. Nyakwamba learned counsel for the appellant /applicant has no objection to the proposal.
6. Bearing in mind the character of the application, the parties’ sentiments and the ends of justice under Article 159 (2) (b) of the Constitution of Kenya, 2010 and section 3 of the Environment and Land Court Act 2015(2011), the application dated 21st September, 2023 is hereby determined on the following terms:a.There be stay of execution of the trial court’s judgment delivered on 24th August 2022 in Oyugis Senior Principal Magistrate’s Environment and Land case No. 33 of 2021 pending the hearing and determination of this appeal.b.The appellant and the respondents to maintain the prevailing status quo over the suit land, Parcel No Central Kasipul/Kamuma/1767 namely that the respondents to continue in occupation of the same pending the hearing and determination of the appeal.c.The appellant’s counsel to file and serve record of appeal on or before 4th December 2023 for directions.
7. It is so ordered.
DATED, DELIVERED AND SIGNED AT HOMABAY THIS 23RD DAY OF OCTOBER 2023G.M.A ONG’ONDOJUDGEPRESENT.a. Mr. Nyakwamba learned counsel for the appellantb. Mr. Omuthe learned counsel for the respondents.c. Court Assistant, Terence.