[2018] KEELC 938 (KLR)
The court found that the 2nd Defendant failed to demonstrate that she would suffer substantial loss if stay was not granted and did not furnish security for the due performance of the decree as required by law. The court was not satisfied that the appeal would be rendered nugatory in the absence of a stay. The...
Source-derived case information.
- Citation
- [2018] KEELC 938 (KLR)
- Parties
- Plaintiff: Chelagat Nases Njakai; Defendant: Teleposta Pension Scheme; Defendant: Norah Chelagat; Defendant: Amos K. Kale t/a Steve Bundotich & Co. Advocates; Defendant: Kale Maina & Bundotich Advocates; Defendant: Ernard Maina t/a Kale Maina & Bundotich Advocates
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 531 of 2010
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the plaintiff
- Legal Topics
- Stay of Execution, Specific Performance, Mesne Profits, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chelagat Nases Njakai
Plaintiff
Teleposta Pension Scheme
Defendant
Norah Chelagat
Defendant
Amos K. Kale t/a Steve Bundotich & Co. Advocates
Defendant
Kale Maina & Bundotich Advocates
Defendant
Ernard Maina t/a Kale Maina & Bundotich Advocates
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the 2nd Defendant is entitled to a stay of execution of the judgment and decree pending appeal.
- 2 Whether the 2nd Defendant has furnished sufficient security for the due performance of the decree.
- 3 Whether the appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The court found that the 2nd Defendant failed to demonstrate that she would suffer substantial loss if stay was not granted and did not furnish security for the due performance of the decree as required by law. The court was not satisfied that the appeal would be rendered nugatory in the absence of a stay. The application for stay of execution was therefore dismissed with costs to the Plaintiff.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The application dated 9/11/2017 for stay of execution is dismissed with costs to the Plaintiff.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
E.L.C. CASE NO. 531 OF 2010
CHELAGAT NASES NJAKAI..........................................................................................PLAINTIFF
VERSUS
TELEPOSTA PENSION SCHEME......................................................................1ST DEFENDANT
NORAH CHELAGAT...........................................................................................2ND DEFENDANT
AMOS K. KALE T/A STEVE BUNDOTICH & CO. ADVOCATES..............3RD DEFENDANT
KALE MAINA & BUNDOTICH ADVOCATES..............................................4TH DEFENDANT
ERNARD MAINA T/A KALE MAINA & BUNDOTICH ADVOCATES.....5TH DEFENDANT
RULING
In the application dated 9/11/2017, the 2nd Defendant seeks stay of execution of the judgement and decree delivered on 11/10/2017 pending hearing and determination of her appeal. The application is made on the grounds the 2nd Defendant being dissatisfied with the entire judgment and decree of this court, has appealed to the Court of Appeal and that eviction orders have been issued against her. She urged that the appeal will be rendered nugatory if the Plaintiff is allowed to proceed with execution. She contends that she has an arguable appeal with high chances of success and has been in possession of the Suit Property close to 30 years.
The Plaintiff opposed the application on the grounds that there is no valid Notice of Appeal since the purported notice was lodged in court on 8/11/2017 yet the judgement was delivered on 10/10/2017. Secondly, the Plaintiff contends that the applicant did not follow the procedure in Order 9 of the Civil Procedure Rules on what should be done where a party changes advocates after judgement. The Plaintiff also contends that the applicant has failed to furnish security for the due performance of the decree.
The court found that the Plaintiff was entitled to an order of specific performance of the agreement dated 27/9/2007 and mesne profits of Kshs. 15,000/= per month from 1/11/2007 until the Plaintiff is given vacant possession of the Suit Property by the 2nd Defendant.
The court is not satisfied that substantial loss may result to the 2nd Defendant unless the order of stay is made. The Applicant has failed to furnish security for the due performance of the decree or order that may ultimately be binding on her. The application dated 9/11/2017 is dismissed with costs to the Plaintiff.
Dated and delivered at Nairobi this 25th day of September 2018.
K. BOR
JUDGE
In the presence of: -
Mr. Nderitu for the Plaintiff
Ms. Muchui holding brief for Ms. Gachuru for the 1st Defendant
Mr. Odera holding brief for Mr. Mokaya for the 2nd Defendant/Applicant
Mr. V. Owuor- Court Assistant