[2023] KEELC 17980 (KLR)
The court held that the requirement for provision of security for costs under Order 42 Rule 6(2)(b) of the Civil Procedure Rules is only applicable where there is an application for stay of execution pending appeal. In this case, the appellant had not sought a stay of execution, and therefore the respondents'...
Source-derived case information.
- Citation
- [2023] KEELC 17980 (KLR)
- Parties
- Appellant: Margaret Otieno Omukaya; Respondent: Doreen Ochanda; Respondent: Damaris Odhiambo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Vihiga
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E001 of 2023
- Procedural Posture
- Environment and Land Appeal / Ruling on Interlocutory Application for Security for Costs Pending Appeal
- Outcome
- application declined
- Judges
- E Asati
- Legal Topics
- Security for Costs, Stay of Execution, Appeals Process, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Otieno Omukaya
Appellant
Doreen Ochanda
Respondent
Damaris Odhiambo
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Interlocutory Application for Security for Costs Pending Appeal
Legal Issues
- 1 Whether the appellant should be ordered to deposit Kshs 100,000 as security before commencement of the appeal.
- 2 Whether the requirement for security for costs applies in the absence of an application for stay of execution pending appeal.
Ratio Decidendi
The court held that the requirement for provision of security for costs under Order 42 Rule 6(2)(b) of the Civil Procedure Rules is only applicable where there is an application for stay of execution pending appeal. In this case, the appellant had not sought a stay of execution, and therefore the respondents' application for security for costs was not tenable. Furthermore, since the judgment in the appeal was being delivered on the same date as the ruling, the issue of security for costs had been overtaken by events. Consequently, the application was declined.
Court Disposition
application declined
Orders
- The application for security for costs is declined.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
Omukaya v Ochanda & another (Environment and Land Appeal E001 of 2023) [2023] KEELC 17980 (KLR) (8 June 2023) (Ruling)
Neutral citation: [2023] KEELC 17980 (KLR)
Republic of Kenya
In the Environment and Land Court at Vihiga
Environment and Land Appeal E001 of 2023
E Asati, J
June 8, 2023
Between
Margaret Otieno Omukaya
Appellant
and
Doreen Ochanda
1st Respondent
Damaris Odhiambo
2nd Respondent
(Being an Appeal against the Judgement of the Senior Resident Magistrate Hon. Rose M. Ndombi delivered on 12/1/2023)
Ruling
1. This ruling is in respect to the Respondents’ application vide the Notice of Motion dated February 28, 2023 stated to be brought pursuant to the provisions of Order 40 Rule 2(1) and (2) of the Civil Procedure Rules, section 1A and 1B of the Civil Procedure Act and article 44 and 159 of the Constitution of Kenya 2010 . The application sought for orders that the Appellant be ordered to deposit a sum of Kshs 100,000/- as security before the commencement of the appeal and costs.
2. Direction were taken, by consent of the parties, on March 6, 2023 that the application and the appeal be canvassed together by way of written submissions within given timelines.
3. The application seeks for an order that the Applicant be ordered to deposit a sum of Kshs 100,000/- as security before the commencement of the appeal and that the order do remain in force until hearing and determination of the appeal. The application was brought on grounds that the orders sought are in the best interest of justice. The requirement for provision of security is contained in Order 42 Rule 6 (2) (b) of the Civil Procedure Rules. The requirement is for provision of such security as the court orders for the due performance of such decree or order as may ultimately be binding on an applicant in an application for stay of execution of the decree or order appealed against pending appeal. It is as a condition for grant of an order of stay of execution pending appeal. In this case, there was no application by the Appellant for orders of stay of execution pending appeal and hence the requirement for provision of security is not applicable. And now that the judgement in respect of the appeal is being delivered on the date of this ruling, the requirement for provision of security is overtaken by events.
4. The upshot is that the application is declined. No order as to costs.It is so ordered.
RULING, DATED AND SIGNED AT VIHIGA, READ IN OPEN COURT THIS 8TH DAY OF JUNE 2023. E. ASATI,JUDGE.In the presence of:Neville- Court Assistant.The Respondents in the appeal/Applicants-present in personMalanda holding brief for Musiega for the Appellant/Respondent in the application.