Lake Victoria South Water Service Board v Seline Akoth Oyiengo [2020] eKLR Case Summary

Court
Court of Appeal at Kisumu
Category
Civil
Judge(s)
Karanja, Asike-Makhandia, Gatembu, JJ.A
Judgment Date
October 23, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Lake Victoria South Water Service Board v Seline Akoth Oyiengo [2020] eKLR


1. Case Information:
- Name of the Case: Lake Victoria South Water Service Board v. Seline Akoth Oyiengo
- Case Number: Civil Application No. 153 of 2019
- Court: Court of Appeal at Kisumu
- Date Delivered: October 23, 2020
- Category of Law: Civil
- Judge(s): Karanja, Asike-Makhandia, Gatembu, JJ.A
- Country: Kenya

2. Questions Presented:
The central legal questions before the court included whether the applicant had established an arguable appeal and whether the intended appeal would be rendered nugatory if the application for a stay of execution was denied.

3. Facts of the Case:
The applicant, Lake Victoria South Water Service Board, sought a stay of execution of a ruling made by the Environment & Land Court at Kisumu on July 10, 2019. The ruling dismissed the applicant's previous request to set aside an interlocutory judgment entered against it on October 26, 2015. The applicant argued that the respondent, Seline Akoth Oyiengo, expressed intent to execute the ruling, which could lead to irreparable harm, as the land in question contained water reservoirs critical for supplying water to Kisumu city. The applicant emphasized that executing the ruling would disrupt water supply, affecting numerous families and homes.

4. Procedural History:
The application for a stay was filed on November 29, 2019, under Rule 5(2)(b) of the Court of Appeal Rules and Section 3B of the Appellate Jurisdiction Act. The applicant supported their application with an affidavit from Eng. Daniel Oronje, the Acting Chief Executive Officer. The respondent did not respond to the application. The court evaluated whether the applicant met the criteria for granting a stay of execution, focusing on the arguments presented and the applicable legal standards.

5. Analysis:
- Rules: The court considered the principles established under Rule 5(2)(b) of the Court of Appeal Rules, which require an applicant to demonstrate that their appeal is arguable and that it would be rendered nugatory if a stay is not granted. The court highlighted that an arguable appeal does not need to guarantee success but should raise serious legal questions deserving consideration.
- Case Law: The court referenced previous decisions such as *Stanley Kang’ethe Kinyanjui v. Tony Ketter & 5 Others* and *Trust Bank Limited & Ano. v. Investech Bank Limited & 3 Others*, which clarified the standards for establishing an arguable appeal and the conditions under which a stay of execution may be granted. It also noted that negative orders, which do not compel action or payment, are generally not subject to execution.
- Application: The court found that the applicant failed to provide a draft memorandum of appeal or specify the grounds for appeal, making it difficult to assess whether the appeal was arguable. Additionally, since the ruling sought to be stayed was a negative order, it was deemed incapable of execution, meaning that the appeal would not be rendered nugatory if the stay were denied. Thus, the court concluded that the applicant did not meet the necessary criteria for granting a stay.

6. Conclusion:
The Court of Appeal dismissed the application for a stay of execution, concluding that the applicant had not demonstrated an arguable appeal nor shown that the appeal would be rendered nugatory without the stay. This decision underscores the importance of clearly articulating grounds for appeal and the nature of the orders being contested.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The Court of Appeal ruled against Lake Victoria South Water Service Board's application for a stay of execution regarding a negative order from the Environment & Land Court. The court found that the applicant failed to establish an arguable appeal and that the order in question was incapable of execution. This ruling emphasizes the procedural requirements for seeking a stay of execution and the significance of distinguishing between positive and negative orders in civil litigation.

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