[2025] KEELC 1047 (KLR)
The court found that the appellants had demonstrated they would suffer substantial loss if evicted and their homes demolished before the appeal is determined, as the respondent did not controvert these facts. The application was filed without unreasonable delay, considering the court vacation period. The appellants...
Source-derived case information.
- Citation
- [2025] KEELC 1047 (KLR)
- Parties
- Appellant: Sabina Otieno; Appellant: Fredrick Ayuma; Respondent: Alfred Abuodha Ombura
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E066 of 2024
- Procedural Posture
- Environment and Land Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application allowed with conditions
- Judges
- E Asati
- Legal Topics
- Stay of Execution, Injunctions, Security for Performance, Eviction Orders, Substantial Loss, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sabina Otieno
Appellant
Fredrick Ayuma
Appellant
Alfred Abuodha Ombura
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the appellants have satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether substantial loss will result to the appellants if stay is not granted.
- 3 Whether the application was made without unreasonable delay.
Ratio Decidendi
The court found that the appellants had demonstrated they would suffer substantial loss if evicted and their homes demolished before the appeal is determined, as the respondent did not controvert these facts. The application was filed without unreasonable delay, considering the court vacation period. The appellants undertook to provide security as directed by the court. The court was satisfied that the conditions under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 for grant of stay of execution pending appeal had been met. Accordingly, the court granted a conditional stay of execution, requiring the appellants to deposit Kshs 150,000 as security within 45 days, failing which the...
Court Disposition
application allowed with conditions
Orders
- An order of stay of execution of the decree in Maseno MELC NO. E010 OF 2021 is granted pending hearing and determination of the appeal, on condition that the applicants deposit Kshs 150,000 as security in a joint interest-earning account within 45 days, failing which the stay shall lapse.
- Costs to abide the appeal.
Full Case Text
Judgment text and source record
29 paragraphs
Otieno & another v Ombura (Environment and Land Appeal E066 of 2024) [2025] KEELC 1047 (KLR) (6 March 2025) (Ruling)
Neutral citation: [2025] KEELC 1047 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisumu
Environment and Land Appeal E066 of 2024
E Asati, J
March 6, 2025
Between
Sabina Otieno
1st Appellant
Fredrick Ayuma
2nd Appellant
and
Alfred Abuodha Ombura
Respondent
Ruling
1. The application before court for determination is the Notice of Motion dated 29th January, 2025 brought by the Appellant pursuant to the provisions of Section 1A & 1B of the Civil Procedure Act and Order 42 Rule 6(1), (2) & (6) of the Civil Procedure Rules, 2010.
2. The application seeks for an order of injunction restraining the Respondent, agents, servants, employees or any other person acting on his behalf from interfering with the Appellants’ occupation of the disputed parcel of land being KISUMU/KAPUONJA/3598 whereon their homes are situated and/or stay of execution of the decree in Maseno ELC No. E010 OF 2021 do issue pending hearing and determination of the appeal herein.
3. The application was supported by the averments in the Supporting Affidavit of Sabina Otieno sworn on 29th January, 2025.
4. The application was opposed vide the Grounds of Opposition dated 13th February, 2025.
5. It was submitted on behalf of the Applicant that both the Appellants were unsuccessful in the lower court. That the judgement of the lower court directed that they be evicted from the contested portion of the suit land on which they have built their homes.
6. That if the eviction and demolition take place before the appeal is heard, the appellants will suffer substantial loss and that the appeal may be rendered nugatory. That the application has been filed without undue delay because the period of the court vacation does not count. That the Applicants are willing to give security as the court will direct.
7. On behalf of the Respondent, it was submitted that the application was filed after much delay. That granting the order sought will amount to denying the Respondent of the fruits of the judgement, that substantial loss has not been demonstrated and that nothing has been placed before court as security. Counsel prayed that the application be dismissed.
8. I have considered the application, the grounds of opposition and the submissions made.
9. The grounds for grant of orders of stay of execution of judgements and decrees are provided for in Order 42 Rule 6(2) of the Civil Procedure Rules 2010 as follows:“No order for stay of execution may be made under sub rule (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.”
10. The matters of fact deposed to in the Supporting Affidavit were not controverted as no Replying Affidavit was filed. It was not denied that the Appellants have their homes on the contested portion of the suit land and that the judgement sought to be stayed directed that the Appellants be evicted therefrom. If they are evicted and demolition of their home happens, they will no doubt suffer substantial loss.
11. Regarding security, the Applicants have undertaken to abide by the directions of the court. I am satisfied that the conditions for grant of an order of stay of execution have been demonstrated.
12. The application is therefore hereby allowed in the following termsi.An order of stay of execution of the decree in Maseno MELC NO. E010 OF 2021 is hereby granted pending hearing and determination of the appeal herein on condition that the applicants deposit the sum of Kshs 150,000/- being security, in an interest earning account in the joint names of Counsel for the parties herein within 45 days of today failing which the order of stay of execution herein granted shall lapse.ii.Costs to abide the appeal.Orders accordingly.
RULING, DATED AND SIGNED AT KISUMU, READ VIRTUALLY THIS 6TH DAY OF MARCH, 2025 THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence of:Maureen: Court Assistant.Ouma Njoga for the Appellants/ Applicants.Cheruyot h/b for Juliet Dima for the Respondent.