[2023] KEELC 157 (KLR)
The court determined that, in order to preserve the subject matter of the appeal and prevent the risk of the suit land being disposed of or otherwise dealt with, it was necessary to grant interim preservation orders. The court relied on its statutory powers under the Environment and Land Court Act and the Civil...
Source-derived case information.
- Citation
- [2023] KEELC 157 (KLR)
- Parties
- Appellant: Joseph Ochilo Were; Respondent: Edward Oganga Mbori (Suing as the legal representative of the Estate of the Late Isaac Mbori Oyugi)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E008 of 2022
- Procedural Posture
- Environment and Land Appeal / Interlocutory Ruling on Preservation Orders and Compliance With Stay of Execution
- Outcome
- Interim preservation orders granted; directions issued for filing and service of record of appeal; consequences for non-compliance specified.
- Judges
- GMA Ongondo
- Legal Topics
- Interim Preservation Orders, Stay of Execution, Record of Appeal Filing, Suit Land Alienation, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ochilo Were
Appellant
Edward Oganga Mbori (Suing as the legal representative of the Estate of the Late Isaac Mbori Oyugi)
Respondent
Procedural Posture
Environment and Land Appeal / Interlocutory Ruling on Preservation Orders and Compliance With Stay of Execution
Legal Issues
- 1 Whether interim preservation orders should be granted to prevent disposal or alienation of the suit land pending appeal.
- 2 Whether the appellant should be compelled to file and serve the record of appeal within a specified period.
- 3 Whether non-compliance with court orders should result in dismissal of the appeal.
Ratio Decidendi
The court determined that, in order to preserve the subject matter of the appeal and prevent the risk of the suit land being disposed of or otherwise dealt with, it was necessary to grant interim preservation orders. The court relied on its statutory powers under the Environment and Land Court Act and the Civil Procedure Act, as well as relevant precedent, to direct that the parties comply with the existing stay of execution and to prohibit any sale, alienation, charging, transfer, subdivision, or erection of permanent structures on the suit land pending further orders. The court further ordered the appellant to file and serve the record of appeal within 21 days, failing which the appeal...
Court Disposition
Interim preservation orders granted; directions issued for filing and service of record of appeal; consequences for non-compliance specified.
Orders
- Parties to comply with the order of stay of execution of judgment granted on December 19, 2022.
- Parties shall not sell, alienate, charge, transfer, subdivide or erect permanent structures on LR No Central Kasipul/Kanuma/1875 pending further orders.
Full Case Text
Judgment text and source record
21 paragraphs
Were v Mbori (Suing as the legal representative of the Estate of the Late Isaac Mbori Oyugi) (Environment and Land Appeal E008 of 2022) [2023] KEELC 157 (KLR) (18 January 2023) (Ruling)
Neutral citation: [2023] KEELC 157 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment and Land Appeal E008 of 2022
GMA Ongondo, J
January 18, 2023
Between
Joseph Ochilo Were
Appellant
and
Edward Oganga Mbori (Suing as the legal representative of the Estate of the Late Isaac Mbori Oyugi)
Respondent
Ruling
1. Ms Ochieng Anyango holding brief for Kisaka learned counsel for the respondent has informed the court that record of appeal has not been filed and served herein.
2. The Counsel has further informed the court that the applicant intends to dispose of the suit land herein. She has sought interim preservation of it.
3. In view of sections 3 and 13 (7) (a) of the Environment and Land Court Act, 2011 and sections 3 and 3A of the Civil Procedure Act Cap 21 Laws of Kenya and being guided by the Court of Appeal decision in Ogada v Mollin [2009] eKLR , I order and direct that:a.The Parties to comply with Order of Stay of execution of Judgment, granted on December 19, 2022. b.The Parties shall not sell, alienate, charge, transfer, subdivide or erect permanent structures on the suit land. LR No Central Kasipul/Kanuma/1875 in order to preserve the same pending further orders and directions of this court.
4. The appellant’s Counsel to file and serve record of appeal in its complete form within 21 days from this date in default the appeal be dismissed in the spirit of Article 159 (2)(b) of theConstitution of Kenya, 2010 and section 3 of the Environment and Land Court Act of 2015 (2011).
5. The appeal is fixed for further directions on February 23, 2023.
6. The respondent’s Counsel to serve these orders forthwith.
DELIVERED, DATED AND SIGNED AT HOMA-BAY THIS 18TH DAY OF JANUARY 2023. G.M.A ONG’ONDOJUDGEPresent1. Ms. Ochieng Anyango holding brief for Kisaka for the Respondent.2. Terence, Court Assistant