[2019] KEELC 1534 (KLR)
The court adopted the parties' consent that the orders and directions in ELC Appeal No. 8 of 2019 would apply to ELC Appeal No. 9 of 2019. The court did not make a substantive determination on the merits of the stay application but instead formalized the parties' agreement as its order. The effect is that the status...
Source-derived case information.
- Citation
- [2019] KEELC 1534 (KLR)
- Parties
- Appellant: Edward Ngari Musa; Respondent: Shadrack Nyaga Njeru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 9 of 2019
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay of Execution Pending Appeal
- Outcome
- Application resolved by consent; orders and directions in ELC Appeal No. 8 of 2019 to apply to this appeal.
- Legal Topics
- Stay of Execution, Eviction Orders, Appeals Process, Irreparable Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Ngari Musa
Appellant
Shadrack Nyaga Njeru
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment and orders issued on 24th June, 2019 pending appeal.
- 2 Whether the applicant will suffer irreparable loss if the stay is not granted.
- 3 Whether the appeal will be rendered nugatory if the stay is not granted.
Ratio Decidendi
The court adopted the parties' consent that the orders and directions in ELC Appeal No. 8 of 2019 would apply to ELC Appeal No. 9 of 2019. The court did not make a substantive determination on the merits of the stay application but instead formalized the parties' agreement as its order. The effect is that the status quo as per ELC Appeal No. 8 of 2019 is maintained, and parties are at liberty to seek consolidation of the two appeals. The court scheduled the matter for directions on a future date, thereby preserving the applicant's position pending further proceedings.
Court Disposition
Application resolved by consent; orders and directions in ELC Appeal No. 8 of 2019 to apply to this appeal.
Orders
- Orders and directions issued in ELC Appeal No. 8 of 2019 to apply to ELC Appeal No. 9 of 2019.
- Parties at liberty to file an application seeking to consolidate ELC Appeal No. 8 of 2019 and ELC Appeal No. 9 of 2019.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CIVIL APPEAL CASE NO. 09 OF 2019
EDWARD NGARI MUSA..................APPLICANT/APPELLANT
VERSUS
SHADRACK NYAGA NJERU.................................RESPONDENT
RULING
1. This application is dated 7th October, 2019 and seeks orders:
1.
2. That the application be certified as urgent and service be dispensed with in the first instance.
3. That pending the hearing and determination of this application there be a stay of execution of the judgment and orders issued on 24th June, 2019 by Hon. J. M. Njoroge Chief Magistrte in Civil Case No. 127 of 2014 Chuka.
4. That pending the hearing and determination of ELC Appeal No. 8 of 2019 there be a stay of execution of the judgment and orders issued on 24thJune, 2019 by Hon. J. M. Njoroge Chief Magistrate in Civil Case No. 127 of 2014 Chuka.
5. That costs be in the cause.
2. The application is supported by the affidavit of Edward Ngari Musa, the applicant, sworn on 7th October, 2019 and has the following grounds:
a) That the applicant herein was dissatisfied with the decision of the Hon. J. M. Njoroge Chief Magistrate in Civil Case No. 127 of 2014 Chuka in the judgment delivered on 24th June, 2019 and has filed ELC Appeal No. 9 of 2019 an appeal which is arguable and has high chances of success.
b) That in the said judgment eviction orders issued against the applicant (sic) to be executed in three months’ time from the date of the judgment, which period lapses on 24th October, 2019.
c) That the applicant risks being evicted from his land that he rightfully owns, resides in with his family and his property being destroyed upon the lapse of the three month’s period in a week’s time.
d) That unless the execution of the judgment and orders of the lower court are stayed the applicant stands to suffer irreparable loss and detriment.
e) That the appeal if successful will be rendered nugatory if stay of execution is not granted.
f) That the Respondent has threatened the applicant that he shall proceed to immediately execute the orders upon the lapse of the three month’s period.
g) That there was no undue delay in bringing this application.
h) That time is of essence in determining this application.
i) That the applicant shall not suffer any prejudice if the appeal (sic) is allowed.
3. On 8th October, 2019 the parties proffered the following consent which they asked the court to adopt as its order:
BY CONSENT
a) Orders and directions issued in ELC Appeal No. 8 of 2019 to apply to ELC Appeal No. 9 of 2019
b) Parties be at liberty to file an application seeking to consolidate ELC Appeal No. 8 of 2019 and ELC Appeal No. 9 of 2019
4. The above order was adopted as an order of this court.
5. The parties will come to court for directions on 11. 11. 2019 instead of on 29. 10. 2019
Delivered in open Court at Chuka this 8th day of October, 2019 in the presence of:
CA: Ndegwa
Miss Ngigi for the Appellant
Matunda fo the Respondent
P. M . NJOROGE,
JUDGE.