[2010] KEHC 844 (KLR)
The court found that the applicant had demonstrated substantial loss would result if stay was not granted, as he had been in occupation and use of the land, had developed it, and had tenants who would be affected. The respondent did not deny these facts, nor did he provide evidence of registration of the land in his...
Source-derived case information.
- Citation
- [2010] KEHC 844 (KLR)
- Parties
- Applicant: Christopher Kipkerich Saina; Respondent: Jackson Kipkerich Sambu
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Judgment Date
- 28 July 2010
- Case Number
- Civil Appeal 145 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application allowed
- Judges
- PM Mwilu
- Legal Topics
- Stay of Execution, Substantial Loss, Possession of Land, Appeal Process
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Kipkerich Saina
Applicant
Jackson Kipkerich Sambu
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss that would result if stay of execution is not granted.
- 2 Whether the application for stay was brought without unreasonable delay.
- 3 Whether the applicant is entitled to stay of execution pending appeal.
Ratio Decidendi
The court found that the applicant had demonstrated substantial loss would result if stay was not granted, as he had been in occupation and use of the land, had developed it, and had tenants who would be affected. The respondent did not deny these facts, nor did he provide evidence of registration of the land in his name. The court was satisfied that the application was brought without unreasonable delay. Therefore, the requirements for granting a stay of execution under Order XLI rule 4(2)(a) were met. The court concluded that failure to grant the stay would render the appeal nugatory and that the balance of convenience favored the applicant.
Court Disposition
application allowed
Orders
- There will be stay of execution of the orders of 6.8.2009 until the appeal herein is heard and determined.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CIVIL APPEAL NO. 145 OF 2009
CHRISTOPHER KIPKERICH SAINA.....................................................................APPLICANT
VERSUS
JACKSON KIPKERICH SAMBU........................................................................RESPONDENT
R U L I N G
Before me is an application by way of a Notice of Motion brought under the provisions of sections 3 and 3A of the Civil Procedure Act and Order XLI Rules 4 and 5 of the Civil Procedure Rules and all other enabling provisions of the law. It seeks stay of execution of the order dated 6/8/2008 until the hearing and determination of the appeal, on the grounds that the applicant being dissatisfied by such order has preferred an appeal which has great chances of success and further the applicant has been in occupation of the suit land and should enjoy the use of the same until the appeal is heard and determined so as not to render it nugatory. The application is supported by the sworn affidavit of the Appellant/Applicant who depones that he stands to suffer great loss and damage if the orders sought are not granted and the Respondent who has never been in occupation of the suit land stands to suffer nothing.
The Respondent filed grounds of objection that the application is an abuse of the court process and that the Respondent is the registered owner of the suit land. That the applicant has not shown that he would suffer any loss and damage if the orders sought are not granted and it is unfair to deny the Respondent use and enjoyment of his plot. That the application is only meant to derail justice.
For the applicant it was submitted that the orders sought ought to be granted as the suit land is the Applicant’s who has been in occupation and use of the same with his tenants.
For the Respondent submission was that he was the registered owner and the Appellant was a stranger and trespasser who cannot suffer by being removed from someone’s land.
Order XLI rule 4(2)(a) provides that no order for stay of execution shall be made under the rule unless the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay. In the instant application the applicant states that he has been in occupation and use of the land and has developed the same and rented part of it to tenants who are innocent parties and should not be made to suffer. That was not denied by the Respondent. The letter of allotment of the suit land to the applicant was annexed to the application and he stated that he has been in occupation and has developed the land since being allocated the same. The court was not shown that the suit land is registered as stated by the Respondent, in his name and I accept that the applicant would suffer substantial loss as he states unless this order is granted. The appeal would be rendered nugatory if stay was not granted. Although the point was not taken by the Respondent I find that the application under consideration was brought without unreasonable delay. Accordingly I allow the application and order that there will be stay of execution of the orders of 6. 8.2009 until the appeal herein is heard and determined.
DATED SIGNED AND DELIVERED AT ELDORET THIS 28TH DAY OF JULY,2010.
P.M. MWILU
JUDGE
In the presence of;
Mr. Kiboi Advocate for Applicant
No appearance for Advocate for Respondent
Andrew Omwenga – Court Clerk
P.M. MWILU
JUDGE