[2004] KEHC 2238 (KLR)
The court found that the applicants had demonstrated that refusal to grant a stay would render their appeal nugatory and cause them loss, particularly given the unique nature of 'House Without Land' agreements, which are prevalent in the Coast Province. The court also recognized the public importance of clarifying...
Source-derived case information.
- Citation
- [2004] KEHC 2238 (KLR)
- Parties
- Appellant: Christopher Baya (Chairman Lachani Welfare Dev. Youth Group); Appellant: Alphonce Mangale (Secretary Lachani Welfare Dev. Youth Group); Appellant: Anderson Karisa (Treasurer Lachani Welfare Dev. Youth Group); Respondent: Philip Kiluko; Respondent: Abdulrahman Nassir Abdallah
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 64 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay Pending Appeal
- Outcome
- Stay of execution granted pending appeal.
- Legal Topics
- House Without Land, Stay of Execution, Breach of Agreement, Right of Occupation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Baya (Chairman Lachani Welfare Dev. Youth Group)
Appellant
Alphonce Mangale (Secretary Lachani Welfare Dev. Youth Group)
Appellant
Anderson Karisa (Treasurer Lachani Welfare Dev. Youth Group)
Appellant
Philip Kiluko
Respondent
Abdulrahman Nassir Abdallah
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending appeal in a dispute involving 'House Without Land' agreements.
- 2 Whether the appeal would be rendered nugatory if stay is not granted.
- 3 Whether the matter raises issues of public importance.
Ratio Decidendi
The court found that the applicants had demonstrated that refusal to grant a stay would render their appeal nugatory and cause them loss, particularly given the unique nature of 'House Without Land' agreements, which are prevalent in the Coast Province. The court also recognized the public importance of clarifying the legal position regarding such agreements. Accordingly, the court exercised its discretion to grant a stay of execution pending the hearing and determination of the appeal, on the condition that the appellants prosecute the appeal diligently within 45 days.
Court Disposition
Stay of execution granted pending appeal.
Orders
- Stay of execution granted pending hearing and determination of the appeal.
- Applicants to present the appeal with all diligence within 45 days from the date of the ruling.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL APPEAL NO. 64 OF 2004
1. CHRISTOPHER BAYA (Chairman Lachani Welfare Dev. Youth Group) 2. ALPHONCE MANGALE (Secretary Lachani Welfare Dev. Yough Group) 3. ANDERSON KARISA (Treasurer Lachani Welfare Dev. Youth Group) Suing as Officers of Lachani Dev. Youth Group…………..APPELLANTS
=V E R S U S
1. PHILIP KILUKO………………………………..1st RESPONDENT 2. ABDULRAHMAN NASSIR ABDALLAH……….2ND RESPONDENT
R U L I N G
The Applicants are aggrieved by order of Trial Court and have filed a Memorandum of Appeal. They seek stay pending hearing of the appeal.
The dispute revolves around the occupation of a plot wherein the 2nd Respondent sold the right to occupy and construct a building on his plot to the Applicants. This arrangement is known as “House Without Land” meaning the right to build on another’s land under agreement which does not pass title to the land.
It is clear that the land owner has breached this Agreement and has brought the 1st Respondent who is harassing the Applicants.
This suit raises a serious legal issue and the matter has to be decided in an Appellate Court.
I therefore find that rejecting the application would render the appeal nugatory and cause loss to the Applicants.
I therefore grant stay as the issue to be decided is of public importance in Coast Province.
I order that the Applicants shall proceed to present the appeal with all diligence within the next 45 days from the date hereof.
Costs in the Appeal.
Dated this 19th day of July, 2004.
JOYCE KHAMINWA
J U D G E
19/7/2004
Khaminwa, J.
Chege – Court Clerk
Mr. Okanga
Mr. Odongo – Holding Brief