[2024] KEELC 13692 (KLR)
The court found that the application for stay of execution was meritorious because the appeal raised triable issues relating to the lease agreement, alleged trespass, and the jurisdiction of the trial court. The applicant demonstrated a risk of prejudice and potential loss if the stay was not granted, particularly...
Source-derived case information.
- Citation
- [2024] KEELC 13692 (KLR)
- Parties
- Appellant: Brian Omollo Onduru; Respondent: Chrles O Odundo Alela
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E020 of 2024
- Procedural Posture
- Environment and Land Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Application for stay of execution allowed; costs to abide the outcome of the appeal.
- Judges
- GMA Ongondo
- Legal Topics
- Stay of Execution, Interlocutory Orders, Jurisdiction of Trial Court, Lease Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brian Omollo Onduru
Appellant
Chrles O Odundo Alela
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order of stay of execution of the trial court's order pending appeal.
- 2 Whether the trial court had jurisdiction over the subject matter.
- 3 Whether the applicant will suffer prejudice or loss if the stay is not granted.
Ratio Decidendi
The court found that the application for stay of execution was meritorious because the appeal raised triable issues relating to the lease agreement, alleged trespass, and the jurisdiction of the trial court. The applicant demonstrated a risk of prejudice and potential loss if the stay was not granted, particularly given the ongoing mining project. The court emphasized the applicant's constitutional right to a fair hearing and the right of appeal. The respondent, having been served, failed to respond to the application. The court exercised its statutory mandate under section 13(7)(a) of the Environment and Land Court Act to grant interim preservation orders and allowed the application for...
Court Disposition
Application for stay of execution allowed; costs to abide the outcome of the appeal.
Orders
- An order of stay of execution of the trial court's order dated 23rd September 2024 is granted pending the hearing and determination of the appeal.
- Costs of the application to abide the outcome of the appeal.
Full Case Text
Judgment text and source record
28 paragraphs
Onduru v Alela (Environment and Land Appeal E020 of 2024) [2024] KEELC 13692 (KLR) (28 October 2024) (Ruling)
Neutral citation: [2024] KEELC 13692 (KLR)
Republic of Kenya
In the Environment and Land Court at Migori
Environment and Land Appeal E020 of 2024
GMA Ongondo, J
October 28, 2024
Between
Brian Omollo Onduru
Appellant
and
Chrles O Odundo Alela
Respondent
Ruling
1. The instant ruling is in respect of an application by way of a Notice of motion dated 3rd October, 2024 by the appellant/applicant, Brian Omollo Onduru through Agure Odero and Company Advocates for orders infra;a.That the honourable court be pleased to grant an order of stay which was issued on 23rd September 2024, which order upheld the one issued on 16/4/2024, pending the hearing and determination of the intended Appeal.b.Cost of this application be borne by the respondentc.Such further and /or other orders be made as the court may deem fit and expedient
2. The grounds of the application are, inter alia;-i.The Ruling delivered on the 23rd day of September 2024, whereby the subordinate court upheld its earlier order of the 16th day of April 2024 that stopped the Applicant herein from working on parcel KAMANGAMBO/KANYAJUO/954,is prejudicial in nature and is in breach of the Lease Agreement thereof.ii.Pursuant to the ruling dated 23/9/2024, the applicant is bound to suffer loss considering the mega project f mining on site and the type of machines thereof.iii.The jurisdiction of the court is in question and it is proper and just that this court issue orders of stay of the trial court order dated 23/9/2024, pending the hearing of the Appeal herein.
3. It is trite law that a party to a case be made aware of the same to elicit any response from that party; see Ogada-vs-Mollin (2009) KLR 620.
4. Clearly, the application was served upon the respondent as revealed in the affidavit of service sworn on 25th October 2024 by Cephas Agure Odero learned counsel for the appellant/applicant. However, the respondent failed to respond to the application.
5. Mr. Agure Odero learned counsel for the applicant has implored the court to grant order number 3 for stay as sought in the application.
6. In the foregone, is the application meritorious to attract the prayer number 3 as stated on the face of the application?
7. This appeal initiated by way of memorandum of appeal dated 3rd October 2024 contains triable issues which include; lease agreement, trespass, jurisdiction of the trial court over the matter.
8. In that regard, the applicant is entitled to have the said issues heard on merit in the spirit of Articles 25 (c), 48 and 50 (1) of the Constitution of Kenya 2010.
9. Moreover, I subscribe to the Court of Appeal decision in the case of Butt vs- Rent Restriction Tribunal (1979) eKLR that;‘……the appellant has an undoubted right of appeal……’
10. I take into account that this court has the mandate to grant interim preservation orders inclusive of the stay sought in the application under section 13 (7) (a) of the Environment and Land Court Act 2015 (2011).
11. Wherefore, the application is firm and meritorious. The same be and is hereby allowed in terms of the order of stay sought therein and as set out in paragraph 1 (a) hereinabove.
12. Costs of the application to abide the outcome of this appeal.
13. It is so ordered.
DATED AND DELIVERED AT MIGORI THIS 28TH DAY OF OCTOBER 2024G. M. A. ONGONDOJUDGEIn Presence of;Mr Agure Odero learned counsel for the appellant/applicantTom- Court Assistant