[2020] KEELC 3223 (KLR)
The court found that the application for stay was filed approximately 58 days after judgment, with a net delay of about 40 days after accounting for the Christmas vacation. The court considered this delay inordinate but, in the interest of justice, allowed the application for stay on condition that the appellant...
Source-derived case information.
- Citation
- [2020] KEELC 3223 (KLR)
- Parties
- Appellant: Wuodgot Odhiambo Migot; Respondent: Jemima Akinyi Oyare
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 57 of 2019
- Procedural Posture
- Elc Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Application for stay of execution allowed conditionally.
- Judges
- TM Olando
- Legal Topics
- Stay of Execution, Security for Decretal Sum, Appeal Procedure, Substantial Loss, Delay in Filing, Taxation of Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wuodgot Odhiambo Migot
Appellant
Jemima Akinyi Oyare
Respondent
Procedural Posture
Elc Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the orders made on 21/8/2019 and the itemized bill of costs dated 22/1/2020 pending appeal.
- 2 Whether the appellant has demonstrated substantial loss if the stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that the application for stay was filed approximately 58 days after judgment, with a net delay of about 40 days after accounting for the Christmas vacation. The court considered this delay inordinate but, in the interest of justice, allowed the application for stay on condition that the appellant deposits the decretal sum of Kshs. 112,800 and the taxed costs in court within 30 days of taxation. The court noted that the appellant had not demonstrated substantial loss or that the respondent would be unable to refund the money if the appeal succeeded, but exercised discretion to grant conditional stay to balance the interests of both parties. Taxation of costs was to proceed...
Court Disposition
Application for stay of execution allowed conditionally.
Orders
- Appellant to deposit Ksh 112,800 and the taxed costs in court within 30 days of taxation.
- Taxation to proceed as scheduled.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISUMU
ELC APPEAL NO. 57 OF 2019
WUODGOT ODHIAMBO MIGOT “formally known as DAUDI ODHIAMBO MIGOT
name formally and absolutely renounced and abandoned vide gazette Notice No. 5013
of 18th July 2014” (enclosed hereto and MARKED WOM (1)...................APPELLANT
VERSUS
JEMIMA AKINYI OYARE..............................................DEFENDANT/RESPONDENT
RULING
Wuodgot Odhiambo Migot formally known as Daudi Odhiambo Migot hereinafter referred to as the Appellant has come to court for prayers that pending the hearing and determination of the appeal herein, the orders made on 21/8/2019 together with the itemed Bill of costs dated 22/1/2020 be stayed.
The application is based on grounds that if the order is not stayed, the appellant will suffer prejudice and that the appeal has high chances of success.
Lastly, that if the orders are not stayed, the appeal will be rendered nugatory.
In her response, the respondent states that the decretal amount as per now is Kshs. 112,800. She suggests that the amount should be deposited in court.
The relevant law in such application is order 42 Rule 6 (2) (a),(b) of the Civil Procedure Rules that provides:
“(2) No order for stay of execution shall be made under subrule
(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; and
(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on himhas been given by the applicant.”
The Judgment was entered on 4/12/2019. This application was filed on 3/2/2020 approximately 58 days after judgment. Even if we remove 15 days of Christmas Vacation excluded in computation of time, we find a delay of approximately 40 days. I do find this to be an inordinate delay in this circumstances.
Moreover, the appellant has not demonstrated substantial loss if he pays the decretal sum to the respondent. It is the appellant’s burden to demonstrate that the respondent will not be able to refund the money if successful on appeal.
However, in the interest of Justice, I do allow the application with a rider that the appellant does deposit Ksh 112,800 and the taxed costs in court within 30 days of Taxation. Taxation to proceed as scheduled.
Costs of the application in the appeal. Orders accordingly.
DATED AND DELIVERED THIS 25TH DAY OF FEBRUARY, 2020.
A.O. OMBWAYO
ENVIRONMENT & LAND
JUDGE
In the presence of:
Appellant in person
Respondent in person
A.O. OMBWAYO
ENVIRONMENT & LAND
JUDGE