Ojwang v Owino [2023] KEHC 23562 (KLR)

Ojwang v Owino (Civil Appeal E009 of 2022) [2023] KEHC 23562 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23562 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Appeal E009 of 2022

RPV Wendoh, J

October 12, 2023

Between

Dorothy Achieng Ojwang

Petitioner

and

Margaret Anyango Owino

Objector

Ruling

1. The applicant Dorothy Achieng Ojwang, filed a Notice of Motion dated 13/1/2022 seeking the following orders: -a.Spent.b.Spent.c.That this court be pleased to grant an order of stay of execution of the ruling delivered on 17/1/2022 and all consequential orders arising therefrom pending the hearing the hearing and determination of the appeal.d.Costs be provided for.

2. The application is premised on the grounds on its face and the supporting affidavit of Dorothy Achieng Ojwang, the applicant herein. The applicant deposed that the subject ruling was delivered on 17/1/2021 in favour of the objector/respondent; that she instructed her Counsel to file an appeal but there was no stay granted by the trial court; that the intended appeal raises triable issues, points of law and thus it has a high chance of success.

3. Further, the applicant deposed that she stands to suffer irreparable loss and damage if this application is not allowed and the objector/respondent is allowed to execute the court decree before the determination of this application and appeal; that the objector/respondent will not be prejudiced if the orders sought are granted.

4. The applicant filed her submissions dated 21/10/2022 on even date. The applicant argued that it is important to preserve the substratum of the case since it involves a land dispute. The appellant urged the court to consider the cases of Eldoret ELC Appeal No. 373 of 2016 William K. Cherus vs Stanley Kiplagat Rono Case No, 373 of 2016, Civil Appeal No. 182 of 2017 JMM vs PM and ELC Appeal Case No. 5 of 2020 where the principles of what amounted to substantial loss were discussed. The applicant submitted that the respondent is likely to dispose off the land or deal with it in a manner which is prejudicial to the applicant.

5. It was further submitted that the financial position of the respondent is questionable given that she was not able to demonstrate how she paid the balance of Kshs. 10,000/= out of the alleged sale agreement. The appellant submitted that the trial court handled a land case in a succession cause which was an abuse of the court process.

6. The application was not opposed. The respondent did not participate in these proceedings.

7. The applicant is asking for orders of stay of execution pending the hearing and determination of the instant appeal. Order 42 Rule (6) (1) and (2) of the Civil Procedure Rules gives provisions for stay pending appeal. An applicant must establish the following before grant of the orders: -a.He shall suffer substantial loss if stay is not granted;b.That the application has been filed without unreasonable delay;c.The applicant is willing to furnish security for the due performance of the decree;d.The applicant has an arguable appeal.

8. On whether the applicant shall suffer substantial loss, substantial loss is the cornerstone for granting an order of stay. It is what has to be prevented. In Kenya National Highways Authority vs Ahmednasir Maalim Abdullahi (2020) eKLR it was held: -“It must be clear to an applicant seeking stay of execution that the law places a duty on him to demonstrate to the satisfaction of the court that he will suffer something special and that he may not be put back to the original position he was in before execution and, therefore, deserves exercise of the court’s discretion in his favour.”

9. The subject dispute which will be wasted is land. The respondent has not controverted the averments of the applicant. This court finds merit in the applicant’s argument that unless stay order is granted, the respondent may deal with the suit land in a manner likely to be detrimental to the applicant.

10. The applicant filed this appeal and the instant application within 14 days of the impugned judgement and decree and therefore the appeal was lodged in time and there was no unreasonable delay in filing this application.

11. On whether the applicant has an arguable appeal. In the grounds of appeal, the appellant stated that the trial court determined the issue of right of ownership of land in a succession case which is unprocedural and wrong. This is arguable as it touches on the jurisdiction of the trial court and proprietary of issuance of the orders.

12. I find that the application has merit and the following orders do issue: -1. A grant of stay of execution of the judgement and decree issued on 17/1/2022 is hereby granted pending the hearing and determination of this appeal;2. The applicant to prepare, file and serve a record of appeal within 60 days hereof;3. Mention before the Deputy Registrar on 13/12/2023 to confirm compliance.4. Costs to abide the outcome of the appeal.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 12TH DAY OF OCTOBER 2023R. WENDOHJUDGERuling delivered in the presence of:-Mr. Odero holding brief for Mr. Ngala Owino for the Applicant.N/A for the Respondent.Emma & Phelix Court Assistants.