[2019] KEELC 3727 (KLR)
The court found that the respondent was not in occupation of the suit property, having allegedly been evicted in 1994, and that it would be fair and just to maintain the status quo as at the time of the lower court's judgment. The court determined that granting a stay of execution would preserve the subject matter...
Source-derived case information.
- Citation
- [2019] KEELC 3727 (KLR)
- Parties
- Appellant: Daniel Ntoitha Mwereria; Respondent: Isaac Mukaria Mwereria
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 9B of 2019
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application allowed
- Legal Topics
- Stay of Execution, Appeals Process, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Ntoitha Mwereria
Appellant
Isaac Mukaria Mwereria
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the appeal would be rendered nugatory if the stay is not granted.
- 3 Whether the status quo should be maintained pending the determination of the appeal.
Ratio Decidendi
The court found that the respondent was not in occupation of the suit property, having allegedly been evicted in 1994, and that it would be fair and just to maintain the status quo as at the time of the lower court's judgment. The court determined that granting a stay of execution would preserve the subject matter of the appeal and prevent the appeal from being rendered nugatory. Accordingly, the application for stay was allowed, subject to the filing and service of the record of appeal within 60 days, failing which the appeal would stand dismissed.
Court Disposition
application allowed
Orders
- An order of stay of execution of the judgment delivered 27.12.2018 in Maua CMCC No. 204/2012 is issued for a period of 1 year.
- The record of appeal to be filed and served within 60 days, failing which the appeal will stand dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC APPEAL CASE NO. 9B OF 2019
DANIEL NTOITHA MWERERIA......APPELLANT/APPLICANT
VERSUS
ISAAC MUKARIA MWERERIA ...........................RESPONDENT
RULING
1. In the application filed on 15. 2.2019, applicant/appellant is seeking for a stay of execution of the judgment delivered on 27. 12. 2018 in Maua CMCC no. 204/2012, pending the hearing of the appeal.
2. He avers inter-alia that the appeal will be rendered nugatory unless an order of stay is given. The respondent who is in person has opposed the application vide his replying affidavit, filed on 25. 2.2019.
3. The respondent is generally claiming entitlement to the suit land through trust.
4. I have considered all the arguments raised herein. I find that respondent is not inoccupation of the suit property as he was allegedly evicted in 1994 (see the judgment).
5. It is therefore only fair and just that the status quo pending as at the time of the delivery of judgment before the lower court be maintained to await the outcome of the appeal.
6. In the circumstances, the application dated 13. 2.2019 is allowed in the following terms;
1. An order of stay of execution of the judgment delivered 27. 12. 2018 in Maua 204/12 is hereby issued for a period of 1 year.
2. The Record of appeal to be filed and served within 60 days failure to which this appeal will stand as dismissed.
3. Costs of this application will abide those in the appeal.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 25TH DAY OF APRIL, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Nyamokeri for applicant
Respondent
Applicant
HON. LUCY. N. MBUGUA
ELC JUDGE