[2018] KEELC 1966 (KLR)
The court found that the 1st Defendant had not demonstrated that her appeal would be rendered nugatory if the stay was not granted, as the suit property could be re-transferred to her or the estate if the appeal succeeded. The court also noted that the land would remain available and records could be rectified if...
Source-derived case information.
- Citation
- [2018] KEELC 1966 (KLR)
- Parties
- Plaintiff: Akash Himatlal Dodhia; Defendant: Dorothy Margaret Wanjiku Kung’u; Defendant: The Chief Land Registrar
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1577 of 2014
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the Plaintiff
- Judges
- AK Bor
- Legal Topics
- Stay of Execution, Transfer of Land, Appeal Process, Substantial Loss, Security for Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Akash Himatlal Dodhia
Plaintiff
Dorothy Margaret Wanjiku Kung’u
Defendant
The Chief Land Registrar
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the 1st Defendant is entitled to an order of stay of execution of the judgement pending appeal.
- 2 Whether the 1st Defendant has demonstrated substantial loss if stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that the 1st Defendant had not demonstrated that her appeal would be rendered nugatory if the stay was not granted, as the suit property could be re-transferred to her or the estate if the appeal succeeded. The court also noted that the land would remain available and records could be rectified if necessary. The application for stay was therefore dismissed, as the requirements for granting a stay—substantial loss and timely application—were not met.
Court Disposition
application dismissed with costs to the Plaintiff
Orders
- The application dated 31/10/2017 is dismissed with costs to the Plaintiff.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
E.L.C. CASE NO. 1577 OF 2014
AKASH HIMATLAL DODHIA.....................................................PLAINTIFF
VERSUS
DOROTHY MARGARET WANJIKU KUNG’U...............1ST DEFENDANT
THE CHIEF LAND REGISTRAR.....................................2ND DEFENDANT
RULING
The 1st Defendant seeks an order of stay of execution of the judgement of this court delivered on 12/10/2017 so that L.R. No. 7741/442/ Kitisuru belonging to the Estate of Samuel Ndung’u Kung’u is not transferred to the Plaintiff before her intended appeal is heard and determined. The 1st Defendant contends that the result of the judgement delivered was to validate the sale agreement entered into by the Plaintiff and 1st Defendant which she is challenging on appeal. She maintains that her appeal will be rendered nugatory if the Suit Property is transferred to the Plaintiff.
The Plaintiff opposed the application urging that there was delay of 26 days in filing the application and that the applicant had failed to establish sufficient cause for the grant of the orders sought. She had neither demonstrated that she will suffer substantial loss if orders of stay are not granted nor had she furnished security for the performance of the decree. The Plaintiff avers that he has been kept out of the Suit Property for over 6 years and should now enjoy the fruits of his judgement.
In his Affidavit, the Plaintiff averred that he is prepared to give an undertaking that if the suit property is transferred to him, he will not transfer it or offer it as security to a financial institution to secure repayment of a loan.
Parties filed submissions which the court has considered. To grant an order of stay, the court must be satisfied that substantial loss may result unless the order is made and that the application was made without unreasonable delay. The 1st Defendant is well within her right to pursue her appeal.
The court is not satisfied that the 1st Defendant’s appeal will be rendered nugatory if this court does not grant orders of stay. If the 1st Defendant succeeds on her appeal, the Plaintiff can transfer the Suit Property back to the 1st Defendant or the estate of her late husband since the land will still be available. It will not have wasted away. The records at the lands office will be rectified to reflect that the transfer to the Plaintiff has been cancelled if the appeal succeeds.
The application dated 31/10/2017 is dismissed with costs to the Plaintiff.
Dated and delivered at Nairobi this 30th day of August 2018.
K. BOR
JUDGE
In the presence of: -
Mr. Mwihuri holding brief for Mr. Kimani for the Plaintiff
Ms. Apolot holding brief for Mr. Gikandi for the 1st Defendant
Mr. Terrell for the 2nd Defendant
Mr. V. Owuor- Court