[2018] KEELC 328 (KLR)
The court found that it had already granted a stay of sale of the charged properties pending appeal, conditional upon the applicant depositing security worth Kshs. 2 million. The applicant complied by depositing title number Nandi Hills/Kosoiywo Block 1/71 as security. Consequently, any intended sale by the...
Source-derived case information.
- Citation
- [2018] KEELC 328 (KLR)
- Parties
- Plaintiff: Daphine Belinda Keter; Defendant: Eco Bank Kenya Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 139 of 2014
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Sale Pending Appeal
- Outcome
- Stay of sale confirmed; restriction ordered on security property pending appeal.
- Judges
- A Ombwayo
- Legal Topics
- Stay of Execution, Charged Property, Security for Costs, Public Auction, Pending Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daphine Belinda Keter
Plaintiff
Eco Bank Kenya Limited
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Sale Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of sale of the charged properties pending the hearing and determination of the appeal.
- 2 Whether the security deposited by the applicant satisfies the court's condition for stay.
- 3 Whether the intended sale by the respondent after the grant of stay constitutes contempt of court.
Ratio Decidendi
The court found that it had already granted a stay of sale of the charged properties pending appeal, conditional upon the applicant depositing security worth Kshs. 2 million. The applicant complied by depositing title number Nandi Hills/Kosoiywo Block 1/71 as security. Consequently, any intended sale by the respondent after the grant of stay is invalid and amounts to contempt of court. The court further ordered that a restriction be entered on the deposited title as security pending the determination of the appeal, thereby upholding the stay and securing the interests of both parties.
Court Disposition
Stay of sale confirmed; restriction ordered on security property pending appeal.
Orders
- The County Land Registrar, Nandi, is to enter a restriction in respect of Nandi Hills/Kosoiywo Block 1/71 as security in this dispute, pending hearing and determination of the appeal.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT ELDORET
E & L CASE NO. 139 OF 2014
DAPHINE BELINDA KETER.................................................PLAINTIFF
VERSUS
ECO BANK KENYA LIMITED............................................DEFENDANT
RULING
The applicant, Daphine Belinda Keter has applied that there be a stay of sale of all those parcels of land known as L. R. Nos. 9399/32, 9399/34 and 9399/36 situate North of Nandi Hills Town registered in the name of Tony Kiplimo Keter, guarantor to Kwaliti Foods Africa Limited which was slated for 29. 11. 2018.
The application is based on grounds that there is an appeal pending before the Court of Appeal and that this honourable court granted stay of sale of the charged properties namely L. R. Nos. 9399/32, 9399/34 and 9399/36 pending the hearing and determination of the appeal. The court ordered that the plaintiff do deposit security in court for costs to the value of Kshs. 2 Million within 30 days.
The defendant/respondent has advertised the charged properties for public auction. The plaintiff/applicant has deposited security by way of title number Nandi Hills/Kosoiywo Block 1/71 in the name of John Kiplimo Keter. The application is supported by the affidavit of Daphine Belinda Keter. The same is opposed by the respondent who has filed a replying affidavit of Sammy Miringu sworn on 21st November, 2018.
I have considered the submissions by the parties in this matter and do find that this court has already granted an order of stay of sale pending appeal and therefore, any intended sale after the grant of stay by the court is invalid and in contempt of the court. The court gave condition that the application to deposit security to the value of Kshs. 2,000,000. The same has been deposited in court, in form of title Number Nandi Hills/Kosoiywo Block 1/71 measuring 0. 64 Ha registered in the names of John Kiplimo Keter. I do find that the parties herein are now involved in circuitous litigation and turning the court into a circus.
I do order that the County Land Registrar, Nandi to enter a restriction in respect of Nandi Hills/Kosoiywo Block 1/71 as security in this dispute, pending hearing and determination of the appeal.
Dated and delivered at Eldoret this 4th day of December, 2018.
A. OMBWAYO
JUDGE