[2019] KEELC 4039 (KLR)
The court found that the plaintiff failed to comply with the mandatory conditions for stay of execution by not depositing the required security and not serving the orders on the defendants. The court further held that the application for review did not meet the necessary threshold, as the supporting affidavit and...
Source-derived case information.
- Citation
- [2019] KEELC 4039 (KLR)
- Parties
- Plaintiff: Emilio Marangu M’ndiiri; Defendant: Anjero Munene Marindi; Defendant: Lawrence Antony Kinyua; Defendant: Faith Nkinga Kabucha; Defendant: Eric Gitonga Mbaka; Defendant: Evangeline Makena Mitambo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 99 of 2017
- Procedural Posture
- Stay Application / Ruling on Interlocutory Applications Post Judgment
- Outcome
- Applications for stay of execution and review dismissed; application for change of advocates allowed.
- Legal Topics
- Stay of Execution, Security for Costs, Change of Advocate, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emilio Marangu M’ndiiri
Plaintiff
Anjero Munene Marindi
Defendant
Lawrence Antony Kinyua
Defendant
Faith Nkinga Kabucha
Defendant
Eric Gitonga Mbaka
Defendant
Evangeline Makena Mitambo
Defendant
Procedural Posture
Stay Application / Ruling on Interlocutory Applications Post Judgment
Legal Issues
- 1 Whether the plaintiff complied with the conditions for stay of execution, specifically depositing security and serving the orders on the defendants.
- 2 Whether the application for change of advocates should be allowed post-judgment.
- 3 Whether the application for review of the ruling delivered on 16th January, 2019 meets the threshold for review.
Ratio Decidendi
The court found that the plaintiff failed to comply with the mandatory conditions for stay of execution by not depositing the required security and not serving the orders on the defendants. The court further held that the application for review did not meet the necessary threshold, as the supporting affidavit and submissions did not persuade the court that the prayers sought were merited. The only uncontested issue was the change of advocates, which the court allowed, but noted that the new firm would prosecute the matter at the appellate level. Consequently, the applications for stay and review were dismissed, with costs awarded to the defendants for the dismissed prayers in the second...
Court Disposition
Applications for stay of execution and review dismissed; application for change of advocates allowed.
Orders
- The application dated 10th January, 2019 is dismissed with no order as to costs.
- Prayer 2 in the application dated 4th February, 2019 (change of advocates) is allowed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 99 OF 2017
FORMERLY MERU ELC 73 OF 2006
EMILIO MARANGU M’NDIIRI......................PLAINTIFF
VERSUS
ANJERO MUNENE MARINDI.................1ST DEFENDANT
LAWRENCE ANTONY KINYUA.............2ND DEFENDANT
FAITH NKINGA KABUCHA....................3RD DEFENDANT
ERIC GITONGA MBAKA.........................4TH DEFENDANT
EVANGELINE MAKENA MITAMBO.....5TH DEFENDANT
RULING
1. There are 2 applications in this matter. The 1st one is dated 10th January, 2019. It seeks stay of execution of this Court’s Judgment delivered on 13th December, 2018. Exparte orders were given pending hearing and determination. The applicant was ordered to deposit with court a sum of Kshs.1,000,000/= as security and to also serve the orders issued by the court upon the defendants.
2. It is quite clear that the plaintiff did not deposit the required security with court within the stipulated time. It is also quite clear that he never served the defendants with the apposite orders as directed by the court.
3. The 2nd application seeks to have the firm of Ndorongo & Co. Advocates come on record in place of the firm of Mwenda Mwarania Akwalu & Co. Advocates. It also seeks a review of the ruling delivered by the court on 16th January, 2019.
4. Miss Njenga, the defendants’ advocate told the court that she was never served with the application dated 10th January, 2019. She went on to tell the court that she had come to court ready to prosecute the application dated 4th February, 2019. She asked the court to dismiss both applications.
5. The applicant did not say anything in support of his application except for nebulously stating that his advocate was unavailable.
6. Regarding the firm of Ndorongo & Co. Advocates coming on record instead of the firm of Mwenda Mwarania Akwalu & Co, this court has no objection although in view of this ruling, the new firm of advocates will prosecute the plaintiff’s case at the Court of Appeal.
7. Order 42 Rule 6 mandatorily requires the depositing of security if a stay of execution is allowed. In this case, conditional stay was granted and security was not deposited within the stipulated time. Having perused the application dated 4th February, 2019 and its supporting affidavit, I am not persuaded that prayers 3 and 4 thereof are merited. Those prayers are denied.
8. It is ordered as follows:
a) The application dated 10th January, 2019 is hereby dismissed with no order as to costs in view of the fact that the defendants never participated in its prosecution.
b) Except for prayer 2 in the application dated 4th February, 2019, which prayer is allowed, prayers 3, 4 and 5 thereof are dismissed and costs are awarded to the defendants.
Delivered in open Court at Chuka this 27th day of March, 2019 in the presence of:
CA: Ndegwa
Kathungu h/b Miss Ndorongo for the Applicant
Lawrence Antony Kinyua – 2nd Defendant
Faith Nkinga Kabucha – 3rd Defendant
P. M. NJOROGE
JUDGE.