[2024] KEELC 4880 (KLR)
The court found that the defendants, as successful litigants, are entitled to enforce the judgment in their favor since there is no subsisting order of stay of execution. The plaintiffs' pending appeal does not, by itself, bar execution, especially as their application for stay was previously dismissed and the Court...
Source-derived case information.
- Citation
- [2024] KEELC 4880 (KLR)
- Parties
- Plaintiff: Pamela Monyangi Bitange; Plaintiff: Daniel N. Kimoro; Defendant: David Kasyaku Tuva; Defendant: Maluni Muia; Defendant: Munini Matolo; Defendant: Damian Kyengo Mwangangi; Defendant: Joseph Zeti Katue
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Case Civil Suit 475 of 2017
- Procedural Posture
- Civil Suit / Ruling on Post Judgment Enforcement Application
- Outcome
- Application allowed; orders granted as prayed.
- Judges
- MN Gicheru
- Legal Topics
- Land Partition, Execution of Judgment, Survey Orders, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pamela Monyangi Bitange
Plaintiff
Daniel N. Kimoro
Plaintiff
David Kasyaku Tuva
Defendant
Maluni Muia
Defendant
Munini Matolo
Defendant
Damian Kyengo Mwangangi
Defendant
Joseph Zeti Katue
Defendant
Procedural Posture
Civil Suit / Ruling on Post Judgment Enforcement Application
Legal Issues
- 1 Whether the court should grant orders for the District Surveyor to subdivide and partition the suit land to effectuate the judgment and decree.
- 2 Whether the absence of a stay of execution pending appeal justifies enforcement of the judgment.
- 3 Whether the pending appeal is sufficient ground to delay execution of the decree.
Ratio Decidendi
The court found that the defendants, as successful litigants, are entitled to enforce the judgment in their favor since there is no subsisting order of stay of execution. The plaintiffs' pending appeal does not, by itself, bar execution, especially as their application for stay was previously dismissed and the Court of Appeal has not issued any stay order. The court held that the plaintiffs failed to demonstrate that their appeal has high chances of success or that enforcement would cause irreparable prejudice. Therefore, the court allowed the application, directing the District Surveyor to subdivide and partition the suit land as per the judgment and decree, regardless of the plaintiffs'...
Court Disposition
Application allowed; orders granted as prayed.
Orders
- The District Surveyor Kajiado is directed to visit and subdivide/partition parcel No. Kajiado/Kaputiei-Central/2305 and conduct necessary survey work to give effect to the judgment and decree dated 21/10/2020.
- The District Surveyor Kajiado is to proceed with the subdivision/partition in the presence or absence of the plaintiffs.
Full Case Text
Judgment text and source record
29 paragraphs
Bitange & another v Tuva & 4 others (Environment and Land Case Civil Suit 475 of 2017) [2024] KEELC 4880 (KLR) (24 June 2024) (Ruling)
Neutral citation: [2024] KEELC 4880 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment and Land Case Civil Suit 475 of 2017
MN Gicheru, J
June 24, 2024
Between
Pamela Monyangi Bitange
1st Plaintiff
Daniel N. Kimoro
2nd Plaintiff
and
David Kasyaku Tuva
1st Defendant
Maluni Muia
2nd Defendant
Munini Matolo
3rd Defendant
Damian Kyengo Mwangangi
4th Defendant
Joseph Zeti Katue
5th Defendant
Ruling
1. This ruling is on the notice of motion dated 21/10/2022. The motion which is brought under Sections 1A, 1B, 3A and 63(e) of the Civil procedure Act, Order 51 Rule 1 Civil Procedure Rules and all other enabling provisions of the law seeks three orders.i.The court do grant an order directing the District Surveyor Kajiado to visit the suit parcel No. Kajiado/Kaputiei-Central/2305 and subdivide/partition it and do other survey work to give effect to the judgment and decree dated 21/10/2020. ii.The court do grant another order directing the District Surveyor Kajiado to subdivide/partition the suit parcel in the presence or absence of the plaintiffs.iii.That the costs of this application be awarded to the defendants.
2. The motion is supported by an affidavit sworn by the defendants and dated 21/10/2022. It is also based on nine (9) grounds. In brief, the defendants state as follows. Firstly, the court ordered that they be allocated parcels of land measuring 6 acres, 6 acres, 6acres, 2 acres and 1 acre respectively out of the suit land. Secondly, the plaintiffs have refused to transfer the land as ordered by the court. Thirdly, the plaintiffs have refused to participate in the exercise. Fourthly, the court orders will never be executed if the court does not allow the application. Finally, the surveyor needs a court order to carry out the exercise.For the above stated reasons, the defendant pray for the orders.
3. The motion is opposed by the respondents and the 1st plaintiff has sworn a replying affidavit dated 31/10/2023 in which she replies as follows. Firstly, the application is untenable and prejudicial to the respondents since they have preferred Appeal No. 500 of 2020. Secondly, the Court of Appeal has already issued directions as to the hearing of the appeal and they have already filed their written submissions. Finally, it is likely that the court of appeal will reverse the judgment and decree herein and it is only fair to wait for the outcome before implementing the decree herein.
4. I have carefully considered the motion in its entirety including the affidavits and the grounds filed by the applicants. I find that the application has merit for the following reasons.Firstly, the defendants are successful litigants who are entitled to the fruits of their judgment. Secondly, there is no order of stay of execution since the court dismissed the one filed by the plaintiffs on 4/5/2021. Thirdly, the court of appeal has not issued any order of stay. Finally, the plaintiffs have not demonstrated that their appeal has high chances of success.For the above stated reasons, I find merit in the motion dated 21/10/2022 and I allow it as drawn.It is so ordered.
DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 24TH DAY OF JUNE 2024. M.N. GICHERUJUDGE