[2016] KEELC 1086 (KLR)
The court found that the applicants had lodged a notice of appeal and were in occupation of the land. If evicted before the appeal is determined, they would suffer substantial loss, including loss of livelihood and homelessness. The court held that this amounts to substantial loss justifying a stay of execution....
Source-derived case information.
- Citation
- [2016] KEELC 1086 (KLR)
- Parties
- Plaintiff: Bakari Sheban & 39 Others; Defendant: Said Bin Rashid Khamis Elmandri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 208 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application allowed with conditional stay of execution; no order as to costs
- Judges
- AA Omollo
- Legal Topics
- Stay of Execution, Substantial Loss, Right of Appeal, Eviction, Conditional Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bakari Sheban & 39 Others
Plaintiff
Said Bin Rashid Khamis Elmandri
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have demonstrated sufficient grounds for grant of stay of execution pending appeal.
- 2 Whether the applicants will suffer substantial loss if stay is not granted.
- 3 Whether the applicants have an arguable appeal.
Ratio Decidendi
The court found that the applicants had lodged a notice of appeal and were in occupation of the land. If evicted before the appeal is determined, they would suffer substantial loss, including loss of livelihood and homelessness. The court held that this amounts to substantial loss justifying a stay of execution. However, to balance the interests of both parties, the stay was made conditional upon the applicants filing and serving the record of appeal within sixty days, failing which the stay would lapse. This ensures the appeal is prosecuted expeditiously and the respondent is not unduly prejudiced.
Court Disposition
application allowed with conditional stay of execution; no order as to costs
Orders
- Stay of execution of the decree granted on condition that the applicants file and serve the record of appeal within sixty days, failing which the stay shall lapse.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC CIVIL SUIT NO. 208 OF 2013
BAKARI SHEBAN & 39 OTHERS............................PLAINTIFFS
-VERSUS-
SAID BIN RASHID KHAMIS ELMANDRI................DEFENDANT
RULING
The plaintiffs being unhappy with the judgement made by this Court on 26. 5.2015 lodged an appeal on 16th June 2015. They also filed the present application dated 15. 06. 2015. In the motion, they have urged the Court to order a stay of execution of the decree as if the same is not granted their appeal will be rendered nugatory.
The Applicants also stated that they are ready and willing to comply with any orders imposed. The application is supported by the affidavit sworn by Bakari Shaban. The applicant avers that if the orders are not granted, they will be rendered homeless.
The Respondent in opposing the application deposes the Applicants have no arguable appeal and that they are in illegal occupation of the Defendant's parcel of land. The Respondent deposes if the stay is granted it will further the illegality and deprive the Respondent their property. The Respondent prayed for the dismissal of the motion.
The advocates on record elected to argue the application by filing written submissions. The Applicants reiterated the grounds set out in the face of the motion. The Defendants/Respondents submitted on the provisions submitted on the provisions of Order 42 rule 6 (2) and argued that the applicants do not merit the orders sought.
I have considered the submissions rendered and the provisions of Order 42 rule 6. This Court is required to grant an order for stay once the Applicant has demonstrated they have an arguable appeal. Secondly that if stay is not given, they will suffer substantial loss. The applicants lodged a notice of appeal on 16th June 2015. The applicants are living on the land. If the orders of stay is not granted, they shall be evicted.
In the event they are evicted while the appeal is pending, they shall incur loss as their livelihood would be taken away. This in my opinion amount to substantial loss and thus deserves the grant of stay. Further pursuing an appeal is a right provided for in our constitution. There is no reason presented to this Court to deny the Applicant the opportunity to exercise that right.
I take cognizance of the fact that the defendants are being denied an opportunity to utilize the land as per their plan. To this extent, I do grant the Applicant a conditional stay that unless the Applicants files and serve the record of appeal within sixty days the stay granted shall lapse. This condition will help fast-track the determination of the appeal so that the party found entitled to the land can stay in peace.
The application is therefore allowed with no order on costs but on condition set out in paragraph 7 above.
Ruling dated and delivered at Mombasa on this 11th day of March 2016
A. OMOLLO
JUDGE