[2023] KEELC 20205 (KLR)

Omondi v Odongo (Environment and Land Appeal E018 of 2023) [2023] KEELC 20205 (KLR) (26 September 2023) (Ruling)

Neutral citation: [2023] KEELC 20205 (KLR)

Republic of Kenya

In the Environment and Land Court at Homa Bay

Environment and Land Appeal E018 of 2023

GMA Ongondo, J

September 26, 2023

Between

Alice Akinyi Omondi

Applicant

and

Gideon Obuya Odongo

Respondent

Ruling

1. On April 17, 2023, the applicant through M/S Oguttu Mboya, Ochwal and Partners Advocates mounted an application by way of a notice of motion dated April 14, 2023 pursuant to, inter alia, articles 27 (1), 48, 50 (1), 159 and 165 of the Constitution of Kenya 2010, sections 13 and 19 of the Environment and Land Court Act, 2011, sections 1A, B, 3A and 63(e) of the Civil Procedure Act, chapter 21 Laws of Kenya as read with order 42 rule 6 of the Civil Procedure Rules, 2010. She is seeking the orders infra;a.Spentb.Spentc.The Honourable Court be pleased to grant an order of stay of execution of the judgment and decree rendered and/or delivered by the subordinate court on the 16th day of March 2023 vide Oyugis PMCC Environment and Land Case No. 91 of 2018, together with all consequential proceedings and/or orders pending the hearing and determination of the instant appeal.d.The honourable court be pleased to grant such further and/or other orders as may be deemed just, appropriate and expedient to be granted.e.Costs of this Application to abide the appeal.

2. The anchorage of the application is the applicant’s supporting affidavit sworn on even date and documents marked as “AA01” to “AA06” annexed thereto. These documents include copies of the parties’ respective pleadings before the trial court, the impugned judgment and photographs.

3. The applicant’s case is that on March 16, 2023, the trial court in Oyugis Law Courts Environment and Land Case No. 91 of 2018 entered judgment against her to the effect that the respondent do evict the applicant from the suit land, to wit, L.R. No. West Kasipul/Kodera Karabach/692. That in the said judgment, the suit land is erroneously indicated as L.R. No. West Kasipul/Kodera Karabach/629, which error has not yet been rectified. That being dissatisfied with the judgment, she lodged an appeal thereto on April 13, 2023 and filed a memorandum of appeal dated April 12, 2023.

4. The applicant avers that if the eviction is executed before the appeal is heard and determined, this appeal shall be rendered nugatory and that she stands to suffer substantial loss. That the respondent would not suffer any prejudice if the instant application is allowed. That this application has been made timeously. Thus, the applicant has urged the honourable court to stay the execution intended to be by an eviction warrant until the appeal is determined.

5. In a replying affidavit sworn on April 24, 2023 and filed on even date, the respondent through the firm of Kisaka and Associates Advocates, opposed the application and sought that it be dismissed with costs. That however, should the honourable court allow the instant application, then the same be done on condition that the applicant pay security for costs.

6. On April 17, 2023, the court ordered and directed that the application be argued by way of written submissions pursuant to order 51 rule 16 of the Civil Procedure Rules, 2010. See also Practice Direction No. 32 of the Environment and Land Court Practice Directions, 2014.

7. Consequently, learned counsel for the applicant filed submissions dated June 5, 2023 on June 6, 2023 and identified twin issues for determination thus: whether the appellant/applicant has satisfied the conditions set for issuance of an order of stay of execution pending appeal and whether the application herein has been brought in good faith.

8. Briefly, learned counsel submitted that the applicant is in occupation of the suit land. That executing the trial court’s judgment would dispossess the applicant of the suit property and may cause the suit property to be charged, wasted and/or disposed of by the respondent herein. That therefore, the honourable court ought to grant the orders sought herein so as to preserve the suit land and not render the appeal nugatory. That further, the appeal raises triable issues and has high chances of success. To fortify his submissions, counsel relied on various authorities including the case of Butt –vs- Rent Restriction Tribunal (1979) eKLR.

9. Learned counsel for the respondent filed submissions on June 15, 2023 on June 20, 2023 and gave a background of the matter. Counsel urged the court to decline to grant the orders sought in the application as the appellant does not stand to suffer any prejudice. That alternatively, stay be granted on the condition that the applicant deposits the sum of Kshs. 1,000,000 in court as security for costs. Counsel relied on the case of Charles Kariuki Njuri –vs- Francis Kimaru Rwara (suing as administrator of Estate of Rwara Kimaru alias Benson Rwara Kimaru (deceased)(2020) eKLR, among others, to buttress the submissions.

10. From the foregoing, the following are the issues for determination:a.Whether the applicant has proved the conditions set for grant of orders of stay of execution; andb.Who should bear the costs of the instant application

11. This court is pretty aware of the conditions as regards an order for stay of execution under order 42 rule 6 (supra) alongside the Constitutional and statutory provisions under which the application is generated. Order 42 rule 6 (supra) provides in part thus: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; andb.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. (Emphasis added)

12. Section 75 of the Civil Procedure Act chapter 21 Laws of Kenya provides for orders from which appeal lies. Section 79 G of the same Act sets out the time for lodging an appeal from the subordinate courts. In the memorandum of appeal dated 1April 2, 2023 and lodged herein on April 13, 2023, the appellant seeks to appeal against the judgment delivered on March 16, 2023 in Oyugis Senior Principal Magistrate’s Court Environment and Land Case No. 91 of 2018.

13. Clearly, article 48 of the Constitution of Kenya, 2010 anchors the right of access to justice. Furthermore, the applicant is entitled to fair hearing of this appeal as stipulated in article 50 (1) of the same Constitution.

14. 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: see James Kanyiita Nderitu and another-vs- Marios Philotas Ghikas and another (2016) eKLR and Onyango Oloo-vs- Attorney General(1986-89) EA 456.

15. In the instant case, there is an impending eviction of the applicant from the suit land as disclosed in the application. Indeed, those are special circumstances in this application which is not opposed subject to a condition as stated in paragraph 9 hereinabove.

16. Further, I subscribe to the Court of Appeal decision in Butt –vs- Rent Restriction Tribunal (supra), where it was observed that;“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. It has been said that the court as a general rule ought to exercise it’s best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson –vs –Church (No. 2) 12 Ch D (1879) 454 at p 459. ..….and the appellant has an undoubted right of appeal.” (Emphasis added)

17. In the foregone, I find that the application has met the requirements for the grant of stay of execution sought therein. The application is merited.

18. Security for costs is discretionary; see order 42 (supra) and notice of motion is not opposed subject to it. So, the applicant is hereby directed to deposit in court within thirty (30) days from this date, the sum of Kshs.30,000 (Thirty thousand only) as security for the due performance of such decree or order as may ultimately be binding upon her, failing which the stay so granted shall automatically lapse without further order(s) herein.

19. Wherefore, the stay order sought in the application dated April 14, 2023 and filed in court on April 17, 2023, be and is hereby granted pending the hearing and determination of the instant appeal and subject to the condition as stated in paragraph 18 hereinabove.

20. Costs of this application be the costs in the appeal.

21. Orders accordingly.

DELIVERED, DATED AND SIGNED AT HOMA BAY THIS 26TH DAY OF SEPTEMBER 2023. G M A ONGONDOJUDGEPresent1. W. Ochwal, learned counsel for the appellant2. Ms. Kisaka, learned counsel for the respondent3. Appellant, present in person4. Respondent, present in person