[2021] KEHC 754 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the delay in seeking a stay of implementation of the orders made nearly two years prior. The court further held that the mere subdivision of land in compliance with a confirmed grant does not amount to eviction, as the law prescribes...
Source-derived case information.
- Citation
- [2021] KEHC 754 (KLR)
- Parties
- Appellant: Aggrey Okumu Rupia; Respondent: Alice Ayieta Wanzala; Respondent: Rosemary Okello Wanzala
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 38 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application for Leave to Be Heard During Recess and for Stay of Implementation
- Outcome
- Leave granted to be heard during recess; application not certified as urgent; matter to proceed inter partes at Busia High Court.
- Judges
- RE Aburili
- Legal Topics
- Stay of Execution, Delay in Filing, Eviction Process, Grant of Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aggrey Okumu Rupia
Appellant
Alice Ayieta Wanzala
Respondent
Rosemary Okello Wanzala
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Leave to Be Heard During Recess and for Stay of Implementation
Legal Issues
- 1 Whether leave should be granted for the application to be heard during court recess.
- 2 Whether the application for stay of implementation should be certified as urgent.
- 3 Whether subdivision of land pursuant to a confirmed grant amounts to eviction.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the delay in seeking a stay of implementation of the orders made nearly two years prior. The court further held that the mere subdivision of land in compliance with a confirmed grant does not amount to eviction, as the law prescribes a specific process for eviction from land. Therefore, the urgency claimed by the applicant was not substantiated, and the application was not certified as urgent. Leave was granted for the application to be heard during recess, but the substantive application for stay was directed to be served for inter partes hearing before the Presiding Judge at Busia High Court.
Court Disposition
Leave granted to be heard during recess; application not certified as urgent; matter to proceed inter partes at Busia High Court.
Orders
- Leave is granted for the application to be heard during the court recess.
- Application is not certified as urgent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CIVIL APPEAL NO. 38 OF 2021
(ORIGINATING FROM BUSIA C.A. 15/2020)
AGGREY OKUMU RUPIA..............................................................................APPELLANT
VERSUS
ALICE AYIETA WANZALA..................................................................1ST RESPONDENT
ROSEMARY OKELLO WANZALA.....................................................2ND RESPONDENT
RULING
1. I have considered the application dated 20th December 2021 under Certificate of Urgency seeking leave to be heard during the recess. I grant leave to be heard during the recess. I however decline to certify the application as urgent for the following reasons:
(1) That the orders for which stay of implementation is sought were made on 23/1/2020 almost two years ago and there is no reason given for the delay in seeking for a stay immediately after filing of the appeal in 2020.
(2) That although there is an allegation of violence erupting and that widows and orphans will be evicted from the land if the intended sub division of the Land No. Bukhayo/Malanga/605 is carried out by the Surveyor on 22/12/2021, the law that governs eviction from land gives a process for such eviction and mere subdivision of the land in compliance with a Certificate of a confirmed grant cannot amount to an order of eviction of occupants of the parcel of land as one has recourse to the legal process if they are aggrieved by actions of others.
2. For the above reasons, I direct the applicant to serve the Respondents with the application for inter partes consideration by the Presiding Judge, Busia High Court in the new term and on a date to be fixed by the Deputy Registrar of Busia High Court.
3. These proceedings to be transmitted to Busia High Court for further action.
3. On our part, this is closed. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 21ST DAY OF DECEMBER 2021
R.E. ABURILI
JUDGE