Okwach (Suing as the Administrator of the Estate of George Okwach Aboge, Deceased) v Othiwo alias Owak Othiwo & another [2024] KEELC 6580 (KLR)

Okwach (Suing as the Administrator of the Estate of George Okwach Aboge, Deceased) v Othiwo alias Owak Othiwo & another (Environment & Land Case 522 of 2015) [2024] KEELC 6580 (KLR) (2 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6580 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisumu

Environment & Land Case 522 of 2015

SO Okong'o, J

October 2, 2024

Between

Phelgona Akinyi Okwach

Plaintiff

Suing as the Administrator of the Estate of George Okwach Aboge, Deceased

and

Maurice Ouru Othiwo alias Owak Othiwo

1st Defendant

John Odiyo Adero

2nd Defendant

Ruling

1. Judgment was entered in this matter on 7th October 2022. The Defendants applied for a stay of execution of the judgment pending appeal to the Court of Appeal. The stay application was dismissed on 22nd November 2023. The Defendants brought another application by a Notice of Motion dated 27th November 2023 in which the Defendants sought; an order directing the District Land Registrar, Kisumu to appear in court as an expert witness to produce the report dated 2nd October 2023, an order that the judgment delivered by Ombwayo J. in favour of the Plaintiff be reviewed and/or varied, and an order directing the District Land Registrar, Kisumu to rectify the register for Kisumu/Dago/250 (the suit property ) by cancelling the name of the Plaintiff as the proprietor of the property and reverting the same to the name of the 1st Defendant who was the original proprietor thereof.

2. In a ruling delivered on 4th July 2024, the court found no merit in the Defendants’ second application and dismissed the same with costs. The Defendants were dissatisfied with the said ruling and filed a notice of their intention to appeal against the same to the Court of Appeal on 1st August 2024. What is now before me is the Defendants’ application brought by way of a Notice of Motion dated 1st August 2024 in which the Defendants have sought an order of stay of execution of the said ruling/order made on 4th July 2024. The Defendants have also prayed that the court issues any other order for the maintenance of the status quo. The application was brought on the grounds set out in the affidavit of the 2nd Defendant sworn on 1st August 2024.

3. The application is opposed by the Plaintiff through grounds of opposition dated 6th August 2024 filed on the same date. The Plaintiff has contended that the application is misconceived, frivolous and amounts to an abuse of the court process. The Plaintiff has contended that in the ruling delivered on 4th July 2024 the execution of which is sought to be stayed, the court gave no positive order capable of being stayed.

4. I have considered the Defendants’ application together with the affidavit filed in support thereof. I have also considered the grounds of opposition filed by the Plaintiff in opposition to the application. Stay of execution is provided for under Order 42 Rule 6 of the Civil Procedure Rules. Order 42 Rule 6(2) of the Civil Procedure Rules provides that:(2)No order for stay of execution shall 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; and(b)such security as the court orders for the due performance of such decree or order as ultimately be binding on him has been given by the applicant.

6. In Kenya Shell Limited v Karuga [1982–1988] I KAR 1018 the court stated that:“It is usually a good rule to see if order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay.”

7. I agree with the Plaintiff that in the ruling of the court delivered on 4th July 2024, the court merely dismissed the Defendants’ application for review. Apart from the order for costs, this court did not make any positive order against the Defendants capable of execution. In Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [20008] eKLR, the Court of Appeal stated as follows:“The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on 18th December, 2006. The order of 18th December, 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus a negative order which is incapable of execution save in respect of costs only.”

8. The same reasoning was applied by Makhandia J. (as he then was) in Raymond M. Omboga v. Austine Pyan Maranga Kisii HCCA No 15 of 2010, where he stated that:“The order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order.”

9. There is therefore nothing in the ruling of 4th July 2024 capable of being executed save for the costs. The Defendants have not persuaded me that they are likely to suffer substantial loss if they pay the costs that were ordered against them in the said ruling.

10. The Defendant had also prayed that the court does “issue any other order for the purposes of maintaining the status quo”. I did not understand this prayer. It is not clear as to the status quo the Defendants want maintained. Judgment has already been delivered in the matter. The Defendants’ application for stay of execution was dismissed. The Defendants’ application for review was similarly dismissed. I find no basis for the order for status quo sought by the Defendants.

Conclusion 13. In conclusion, I find no merit in the Defendants’ Notice of Motion application dated 1st August 2024. The application is dismissed with costs to the Plaintiff.

DELIVERED AND DATED AT KISUMU ON THIS 2ND DAY OF OCTOBER 2024S. OKONG’OJUDGERULING DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM IN THE PRESENCE OF:N/A for the PlaintiffMr. Sala for the DefendantsMs. J. Omondi-Court Assistant