[2023] KEELC 22368 (KLR)
The court found that the applicant had demonstrated sufficient grounds for the grant of a stay of execution pending appeal, particularly the risk of the appeal being rendered nugatory and the possibility of substantial financial loss. The respondent, having been duly served, failed to respond to the application. The...
Source-derived case information.
- Citation
- [2023] KEELC 22368 (KLR)
- Parties
- Applicant: Elijah Ouko; Respondent: Dancan Atito Opoko
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E015 of 2023
- Procedural Posture
- Environment and Land Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Application allowed; stay of execution granted on condition of security deposit.
- Judges
- GMA Ongondo
- Legal Topics
- Stay of Execution, Security for Due Performance, Appeal Procedure, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Ouko
Applicant
Dancan Atito Opoko
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 judgment and decree pending appeal.
- 2 Whether security for due performance should be ordered as a condition for stay.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient grounds for the grant of a stay of execution pending appeal, particularly the risk of the appeal being rendered nugatory and the possibility of substantial financial loss. The respondent, having been duly served, failed to respond to the application. The court exercised its discretion to grant the stay, conditional upon the applicant depositing Kshs 10,000 as security for the due performance of the decree within thirty days, failing which the stay would lapse automatically.
Court Disposition
Application allowed; stay of execution granted on condition of security deposit.
Orders
- An order of stay of execution of the judgment and decree in Land Case No. 16 of 2020 at Ndhiwa is granted pending determination of the appeal.
- The applicant shall deposit Kshs 10,000 as security for due performance of the decree within thirty days, failing which the stay shall lapse automatically.
Full Case Text
Judgment text and source record
23 paragraphs
Ouko v Opoko (Environment and Land Appeal E015 of 2023) [2023] KEELC 22368 (KLR) (14 December 2023) (Ruling)
Neutral citation: [2023] KEELC 22368 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment and Land Appeal E015 of 2023
GMA Ongondo, J
December 14, 2023
Between
Elijah Ouko
Applicant
and
Dancan Atito Opoko
Respondent
Ruling
1. By a notice of motion dated November 23, 2023, the appellant/applicant in person is seeking the following orders;a.The Honourable court be pleased to issue an order of stay of executionof the judgment and decree issued by Honourable Onzere E.M PM in Land case No. 16 of 2020 at the Principal Magistrate at Ndhiwa on the 7th March 2023 pending hearing and determination of this appeal.b.The costs of this application be costs in the cause.
2. The application is rooted in the applicant’s supporting affidavit alongside grounds 1 to 6 stated on the face of the same. In a nutshell, the applicant’s complaint is that the trial court’s judgment was delivered in favour of the respondent, a decree issued and the firm of Nira Auctioneers has proclaimed his properties in execution of the decree which may render this appeal nugatory and cause substantial financial loss to the applicant.
3. The respondent was made aware of the application as he was duly served with the application as disclosed in an affidavit of service sworn on December 13, 2023 by Steven Onyango Oyugi, a licenced process server; see Ogada-vs-Mollin (2009) KLR 620.
4. Clearly, the respondent did not respond to the application
5. Thus, the application is steadfast and merited. The same is hereby allowed in terms of prayer number 4 as stated in paragraph 1 (a) hereinabove.
6. The applicant shall deposit a sum of Kshs 10,000/= being security for the due performance of the decree in this court within the next thirty days from this date failure of which the stay order granted herein shall lapse automatically without any further orders being necessary.
7. Costs of the application to be costs in the present appeal.
8. It is so ordered.
DATED AND DELIVERED AT HOMA BAY THIS 14TH DAY OF DECEMBER 2023G. M. A ONGONDOJUDGEPRESENT1. Appellant/applicant in person2. Kachuodho, Court assistant