[2024] KEELC 3593 (KLR)
The court found that it was necessary to maintain the restriction on the land parcel Suna East/Wasweta I/321 pending the hearing and determination of the appeal in order to preserve the subject matter and prevent any dealings that could defeat the appeal. The court noted that the respondent would not suffer...
Source-derived case information.
- Citation
- [2024] KEELC 3593 (KLR)
- Parties
- Applicant: County Government of Migori; Respondent: Simeon Ongoro Tundu (Sued as Administrator of the Estate of Gideon Tundu); Respondent: The Land Registrar, Migori County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E004 of 2024
- Procedural Posture
- Environment and Land Appeal / Ruling on Interlocutory Application for Stay Pending Appeal
- Outcome
- Application allowed. Stay of execution granted. Restriction to be maintained pending appeal.
- Judges
- M Sila
- Legal Topics
- Interlocutory Injunctions, Land Restrictions, Stay of Execution, Maintenance of Status Quo
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
County Government of Migori
Applicant
Simeon Ongoro Tundu (Sued as Administrator of the Estate of Gideon Tundu)
Respondent
The Land Registrar, Migori County
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Interlocutory Application for Stay Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of execution of the lower court's ruling pending appeal.
- 2 Whether the restriction registered on the suit land should be maintained pending determination of the appeal.
- 3 Whether the applicant or the public will suffer prejudice if the restriction is removed before the appeal is heard.
Ratio Decidendi
The court found that it was necessary to maintain the restriction on the land parcel Suna East/Wasweta I/321 pending the hearing and determination of the appeal in order to preserve the subject matter and prevent any dealings that could defeat the appeal. The court noted that the respondent would not suffer prejudice by the maintenance of the restriction, as he had averred that he did not intend to dispose of the property. The balance of convenience and the need to safeguard the interests of justice warranted the grant of the orders sought by the applicant.
Court Disposition
Application allowed. Stay of execution granted. Restriction to be maintained pending appeal.
Orders
- The restriction in the land parcel Suna East/Wasweta I/321 shall be maintained pending hearing and determination of this appeal.
- The status quo regarding possession and use of the said parcel of land shall be maintained pending hearing and determination of the appeal.
Full Case Text
Judgment text and source record
23 paragraphs
County Government of Migori v Tundu (Sued as Administrator of the Estate of Gideon Tundu) & another (Environment and Land Appeal E004 of 2024) [2024] KEELC 3593 (KLR) (2 May 2024) (Ruling)
Neutral citation: [2024] KEELC 3593 (KLR)
Republic of Kenya
In the Environment and Land Court at Migori
Environment and Land Appeal E004 of 2024
M Sila, J
May 2, 2024
Between
County Government of Migori
Applicant
and
Simeon Ongoro Tundu (Sued as Administrator of the Estate of Gideon Tundu)
1st Respondent
The Land Registrar, Migori County
2nd Respondent
Ruling
1. The appellant has filed an application dated 12 March 2024 seeking orders to restrain removal of a restriction registered in the land parcel Suna East/Wasweta I/321, and an order of stay of execution of the ruling of Hon. N. Wairimu, made in the case Migori CMC ELC Miscellaneous Application No. E019 of 2023, pending hearing and determination of her appeal. The application is opposed by the 1st respondent who filed a replying affidavit.
2. In the supporting affidavit, sworn by Gradus Oluoch Adis, the County Attorney of the applicant, it is averred that the restriction was registered on 7 August 2015 to protect the interests of the Government of Kenya and the public at large. He believes that the applicant and the public at large will suffer loss if the restriction is removed before the appeal is determined.
3. In the replying affidavit, the respondent avers that the application is intended to delay justice and that he has no plans to dispose of the suit property to any third party. He avers that the restriction is illegal.
4. I have considered the application. It is one for stay pending appeal. I am persuaded that it is necessary to retain the restriction pending hearing and determination of the appeal. It would appear that the applicant is asserting rights over the disputed land, and in order to maintain the land in the same state as it currently is, it is necessary that the restriction be maintained. If it is removed, there is risk of dealings being entered which may defeat the appeal. I see no prejudice to the respondent because in his own deposition he avers that he does not intend to dispose of the suit property. If that is so, then he will not in any way be prejudiced by the maintenance of the restriction as a safeguard.
5. I will therefore allow the application. The restriction in the land parcel Suna East/Wasweta I/321 be maintained pending hearing and determination of this appeal. The status quo regarding possession and use of the said parcel of land also be maintained pending the hearing and determination of the appeal. The costs of the application will be costs in the cause.
6. Orders accordingly.
DATED AND DELIVERED THIS 2ND DAY OF MAY 2024********JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURTMIGORIDelivered in presence of :Mr. Nyasimi for the applicantRespondent in personCourt Assistant – David Ochieng’