[2021] KEELC 582 (KLR)
The court found that the applicants had demonstrated sufficient cause for the grant of stay of execution pending appeal. The parties had agreed that the deposit of the title deed for the suit land, Kasigunga/Kemreri/756, with the court would serve as adequate security. The court was guided by the principles set out...
Source-derived case information.
- Citation
- [2021] KEELC 582 (KLR)
- Parties
- Applicant: Onyango Oriri; Applicant: Agnes Atieno Oriri & Another; Respondent: Benard Onyango Ojwang; Respondent: Daniel Onyango Otieno
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E009 of 2021
- Procedural Posture
- Stay Application / Ruling on Notice of Motion for Stay Pending Appeal
- Outcome
- Notice of Motion allowed; stay of execution granted on condition of deposit of title deed; costs in the appeal.
- Legal Topics
- Stay of Execution, Security for Appeal, Preservation Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Onyango Oriri
Applicant
Agnes Atieno Oriri & Another
Applicant
Benard Onyango Ojwang
Respondent
Daniel Onyango Otieno
Respondent
Procedural Posture
Stay Application / Ruling on Notice of Motion for Stay Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to an order for stay of execution of the judgment of the trial court pending appeal.
- 2 Whether the deposit of the title deed as security is sufficient for the grant of stay.
- 3 Whether the application for stay meets the legal threshold under the law.
Ratio Decidendi
The court found that the applicants had demonstrated sufficient cause for the grant of stay of execution pending appeal. The parties had agreed that the deposit of the title deed for the suit land, Kasigunga/Kemreri/756, with the court would serve as adequate security. The court was guided by the principles set out in Article 159 of the Constitution, the Environment and Land Court Act, and the decision in Butt v Rent Restriction Tribunal, emphasizing the need to preserve the subject matter of the appeal and ensure that the appeal is not rendered nugatory. The court therefore granted the stay of execution on condition that the title deed be deposited forthwith, and directed that costs of...
Court Disposition
Notice of Motion allowed; stay of execution granted on condition of deposit of title deed; costs in the appeal.
Orders
- Applicants to deposit the title deed for Kasigunga/Kemreri/756 with the court forthwith as security for stay of execution.
- Costs of the Notice of Motion to be costs in the appeal.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT HOMABAY
ELC CASE APPEAL NO. E009 OF 2021
1. ONYANGO ORIRI……….………………………..…………PLAINTIFF
2. AGNES ATIENO ORIRI & ANOTHER.…………………..PLAINTIFF
VERSUS
1. BENARD ONYANGO OJWANG…….….………….…….DEFENDANT
2. DANIEL ONYANGO OTIENO………………..…….……DEFENDANT
RULING
1. I have heard counsel for the respective parties herein regarding Notice of Motion dated 19/10/2021 where the applicants have sought.
2. In a 13-paragraphed replying affidavit sworn by the 1st Respondent on 18 November 2021 and filed herein on 23rd November 2021, the Respondents opposed the Notice of Motion. They sought dismissal of the same with costs.
a) Spent
b) Spent
c) Pending the hearing and determination of the appeal, the Honourable Court be pleased to grant an order for stay of execution of the Judgement of the trial Court delivered on 23rd September 2021 and all consequential orders and decree.
d) The Honourable Court be pleased to grant any such orders as may be deemed just and reasonable in the circumstances.
e) Costs of the application be provided for.
3. The parties having agreed to have the Notice of Motion comprised in terms of security vide deposit of title deed in respect of the suit land, Kasigunga/Kemreri/756 with court.
4. I am guided by Article 159(2), (b) and c of the Constitution of Kenya 2010, the decision in Butt-versus -Rent Restriction Tribunal (1979) eKLR.Further, section 13(7) (a) of the Environment Land Court Act, 2015(2011) governs preservation orders which include stay of execution order sought in the Notice of Motion.
5. A fortiori; I find and hold as follows.
(a) The Notice of Motion is merited and is hereby determined on terms that the applicants shall forthwith deposit title of the suit land which is the subject matter of this appeal, forthwith with this court as prayer 3 sought therein is granted accordingly.
(b) Costs of the Notice of Motion be costs in this appeal.
6. The appellants’ counsel to file and serve the record of appeal within the next 21 days from this date.
7. Mention to confirm compliance and for directions on 25th January 2022.
8. The parties are applauded for their determination to have the Notice of Motion disposed of without any delay.
9. It is so ordered.
G.M.A ONG’ONDO
JUDGE
Ruling delivered, signed and dated at Homa-Bay this 22nd day of November 2021
In the Presence of;
Mr. Owaka holding brief for the Applicants’ counsel, Mr. Otinga
Mr. H. Bunde learned for the Respondents
Court Assistant: Okello
G.M.A ONG’ONDO
JUDGE