[2016] KEHC 4519 (KLR)
The court found that the applicant had satisfied the requirements for grant of stay of execution pending appeal by demonstrating that he had been in occupation of the land for over a decade, had developed it, and would suffer substantial loss if evicted before the appeal is heard. The applicant complied with the...
Source-derived case information.
- Citation
- [2016] KEHC 4519 (KLR)
- Parties
- Appellant: Eliphas Mbae Arithi; Respondent: Angela Gatumi Mucheke
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 35 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed.
- Judges
- FM Njoroge
- Legal Topics
- Stay of Execution, Security for Costs, Appeals Process, Eviction, Possession of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliphas Mbae Arithi
Appellant
Angela Gatumi Mucheke
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment/decree pending appeal.
- 2 Whether sufficient security has been provided for the due performance of the decree.
- 3 Whether the applicant has demonstrated arguable grounds for appeal warranting stay.
Ratio Decidendi
The court found that the applicant had satisfied the requirements for grant of stay of execution pending appeal by demonstrating that he had been in occupation of the land for over a decade, had developed it, and would suffer substantial loss if evicted before the appeal is heard. The applicant complied with the court's directive to deposit Kshs. 100,000 as security, fulfilling the requirement for security for due performance of the decree. The court exercised its discretion to stay execution to preserve the subject matter of the appeal and ensure the appeal is not rendered nugatory. The court further directed the expeditious filing and service of the record of appeal to facilitate prompt...
Court Disposition
Application for stay of execution pending appeal allowed.
Orders
- Stay of execution of the judgment/decree in Nkubu PMCC No. 74 of 2013 pending hearing and determination of the appeal.
- The sum of Kshs. 100,000 deposited by the applicant to be retained as security until determination of the appeal.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL APPEAL NO. 35 OF 2015
ELIPHAS MBAE ARITHI.....................................................APPELLANT
VERSUS
ANGELA GATUMI MUCHEKE............................................RESPONDENT
R U L I NG
This application is dated 27th July, 2015 and seeks orders:-
1. THAT this Honourable Court be pleased to certify this application as urgent and hear the same ex-parte in the first instance.
2. THAT this Honourable Court be pleased to order stay of execution of the Judgment/decree of the Principal Magistrate Nkubu in Nkubu PMCC NO. 74 of 2013 pending the hearing of this application inter parties.
3. THAT this Honourable Court be pleased to order stay of execution of the Judgment/Decree of the Principal Magistrate Nkubu PMCC NO. 74 OF 2013 pending the hearing and determination of this Appeal.
4. That the cost of this application be provided for.
The application is supported by the Affidavit of the applicant, ELIPHAS MBAE ARITHI and has the following grounds:-
a. THAT the applicant was not satisfied with the Judgment of the Court.
b. THAT the applicant has been on the land for now close to 12 yearsand has extensively developed the same which is only 1 acre and should not be evicted.
(c ) THAT the Court refused to consider the Appellant's case and binding authorities from the High Court and Court of Appeal.
d. THAT the applicant has a good Appeal and should be given chance to be heard by this Court before he is thrown out of what he has known as his home for over 10 years.
On 29th, July, 2015, I ordered the applicant to deposit a sum of Kshs. 100,000/= in Court within 7 days of the date failing which the order of stay would lapse. The applicant obeyed the order and deposited with Court a sum of Kshs. 100,000/=.
I have considered the pleadings and the Submissions proffered by the parties in support of their respective assertions . I find that the application has merit. It is ordered as follows:-
1. This Court stays the Execution of the Judgment/Decree of the Principal Magistrate, Nkubu, in PMCC No. 74 of 2013 pending the hearing and determination of this Appeal.
2. The sum of Kshs. 100,000/= already deposited with the Court by the applicant, be retained as deposit for security until this appeal is heard and determined.
3. To expedite the hearing of the appeal , I admit it to appeal and the appellant should file the record of appeal and serve it upon the respondent within 60 days of today.
4. After the record of Appeal is filed and exchanged, the parties will obtain a mutually convenient date for directions from the Registry.
It is so ordered.
DELIVERED IN OPEN COURT AT MERU THIS 19TH DAY OF MAY, 2016 IN THE PRESENCE OF:-
CC: Lilian/Daniel
Muthamia h/b Rimita for Applicant
P.M NJOROGE
JUDGE