[2019] KEELC 1096 (KLR)
The court found that both parties were in agreement that a stay of execution pending appeal should be granted, but could not agree on the amount of security to be deposited. Considering the nature of the proceedings, the time likely to be taken to hear the appeal, and all surrounding circumstances, the court...
Source-derived case information.
- Citation
- [2019] KEELC 1096 (KLR)
- Parties
- Plaintiff: Bahati Properties; Defendant: Attorney General & 7 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 31 of 2015
- Procedural Posture
- Stay Application / Application for Stay Pending Appeal After Judgment
- Outcome
- Stay of execution granted pending appeal, conditional on deposit of security.
- Legal Topics
- Stay of Execution, Security for Stay, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bahati Properties
Plaintiff
Attorney General & 7 Others
Defendant
Procedural Posture
Stay Application / Application for Stay Pending Appeal After Judgment
Legal Issues
- 1 Whether a stay of execution pending appeal should be granted.
- 2 What amount of security should be deposited as a condition for stay.
Ratio Decidendi
The court found that both parties were in agreement that a stay of execution pending appeal should be granted, but could not agree on the amount of security to be deposited. Considering the nature of the proceedings, the time likely to be taken to hear the appeal, and all surrounding circumstances, the court exercised its discretion to order that the applicants deposit a cash security of Kshs. 1,500,000 within 30 days as a condition for the stay. Failure to deposit the security would result in the lapse of the stay order and execution of the decree. The decision was grounded on the need to balance the interests of the parties and ensure the due performance of the decree if the appeal fails.
Court Disposition
Stay of execution granted pending appeal, conditional on deposit of security.
Orders
- Applicants to deposit Kshs. 1,500,000 as security within 30 days from the date of the ruling.
- If the sum is not deposited within 30 days, the order of stay will lapse and the decree may be executed.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE ENVIRONMENT & LAND COURT
AT MOMBASA
ELC CASE NO. 31 OF 2015
VERSUS
RULING
(Application for stay pending appeal; parties agreeing to stay but asking court to assess the security to be deposited; court givesorder for security of Kshs. 1,500,000/=)
BAHATI PROPERTIES ....................................................PLAINITFF
VERSUS
ATTORNEY GENERAL & 7 OTHERS......................DEFENDANTS
1. Through an application dated 15 August 2019, the 2nd to 7th defendants have sought orders that there be a stay of execution of the decree herein pending appeal. The suit itself was commenced through a plaint vide which the plaintiff asserted ownership of the land parcel Kwale/Diani Beach Block/59 which it contended had been given a new number 149 and title to this parcel No. 149 fraudulently issued to the 2nd to 7th defendants. The applicants resisted the case while asserting that their title No. 149 was the good title. The matter was heard and judgment delivered on 27 June 2019 by my predecessor, Honourable Justice A. Omollo. The judgment was in favour of the plaintiff/respondent. Aggrieved, the applicants filed a Notice of Appeal and I am made to understand that an appeal has now been filed.
2. When this application came up for hearing on 24 October 2019, Mr. Magolo learned counsel for the applicants, and Mr. McCourt, learned counsel for the respondent, agreed as follows :-
(a) That in the event that the appeal fails, the applicants be evicted forthwith.
(b) That the applicants will try their best to have the appeal heard as soon as possible.
(c) That the court do assess the security.
3. It will therefore be observed that parties have more or less agreed that there be stay of execution pending appeal, but they could not agree on the security to be deposited as a condition for stay.
4. I have on my part considered the nature of the proceedings, the time that may be taken to hear the appeal, and all surrounding circumstances. My view, is that for the applicants to be entitled to stay, they need to deposit security in the form of a cash deposit of Kshs. 1, 500,000/=. If this sum of money is not deposited within 30 days from today, then the order of stay will lapse and the decree may be executed.
5. Orders accordingly.
DATED, SIGNED and DELIVERED at MOMBASA this 30th day of October 2019.
MUNYAO SILA
JUDGE.
IN THE PRESENCE OF:
Mr. Wafula holding brief for Mr Magolo for the applicants.
Mr Hamisi holding brief for Mr McCourt for the respondent.
Court assistant ; Koitamet