[2015] KEELC 154 (KLR)
The court found that the defendant/applicant failed to satisfactorily demonstrate the substantial loss he would suffer if the stay was not granted. The court noted that the plaintiffs, not the defendants, have been in occupation of the suit property and have developed it for charitable purposes, including an...
Source-derived case information.
- Citation
- [2015] KEELC 154 (KLR)
- Parties
- Plaintiff: Francis K. Baya; Plaintiff: Joseph Kiringi; Plaintiff: Clementina Mapenzi; Defendant: Sammy Mutile; Defendant: Denise Kinotte Mtile
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 34 of 2014
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance, Transfer of Land, Charitable Trusts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis K. Baya
Plaintiff
Joseph Kiringi
Plaintiff
Clementina Mapenzi
Plaintiff
Sammy Mutile
Defendant
Denise Kinotte Mtile
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the defendant/applicant has demonstrated substantial loss to warrant a stay of execution pending appeal.
- 2 Whether the application for stay of execution was made without unreasonable delay.
- 3 Whether the applicant has provided security for the due performance of the decree.
Ratio Decidendi
The court found that the defendant/applicant failed to satisfactorily demonstrate the substantial loss he would suffer if the stay was not granted. The court noted that the plaintiffs, not the defendants, have been in occupation of the suit property and have developed it for charitable purposes, including an orphanage, school, and clinic. The assertion that the plaintiffs might sell the property to third parties was found unconvincing, especially since the defendants do not reside on the property. The court further observed that the defendants, as title holders, would be more likely to dispose of the property if the title deeds remained in their names. The application for stay was also...
Court Disposition
application dismissed with costs
Orders
- The application dated 19th June 2015 is dismissed with costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.34 OF 2014
(formally CMCC No. 364 of 2010)
1. FRANCIS K. BAYA
2. JOSEPH KIRINGI
3. CLEMENTINA MAPENZI (suing on their behalf of Chairman, Secretary and Treasurer
respectively as officials and on behalf of members of Rainbow Community Care Kibokoni.............................................PLAINTIFFS
=VERSUS=
1. SAMMY MUTILE
2. DENISE KINOTTE MTILE.....................................................DEFENDANTS/APPLICANTS
R U L I N G
1. On 12th June 2015, this court entered Judgment in favour of the Plaintiffs. In the Judgment, the court ordered the Defendants to transfer the suit property to the Plaintiffs on the ground that the suit property was purchased by the Plaintiffs' organiszation.
2. The 1st Defendant has now filed an Application dated 19th June 2015 in which he is seeking for the following orders:
(a) That upon interpartes hearing, the stay of execution be confirmed pending hearing and determination of the Appeal.
(b) That the Honoruable court to grant any other or further directions as it may deem fit and just to grant.
(c) That costs be provided for.
3. The Application is premised on the grounds that if the orders of this court are executed, the Applicant will suffer great prejudice and substantial loss; that the appeal will be rendered nugatory and that the Applicant has an arguable appeal.
4. In the Replying Affidavit, the 1st Plaintiff/Respondent deponed that the Defendant has not demonstrated how he will suffer substantial loss; that the Defendant/Applicant has not offered security and that damages can compensate the Defendant in the event he succeeds in the intended appeal.
5. I have considered the submissions on record.
6. Order 42 Rule 6(2) of the Civil Procedure Rules provides that for an order of stay of execution to be granted, the Applicant must satisfy the court that substantial loss may result to him unless the order is made and that the Application has been made without unreasonable delay.
7. The Applicant is also required to give such security as the court orders for the due performance of the decree.
8. The Defendant/Applicant has stated in his Supporting Affidavit that he is likely to suffer substantial loss unless the order of stay is granted because the Plaintiff might sell the suit property to third parties.
9. The Defendant/Applicant does not live on the suit property. Indeed, it is the Plaintiffs that have been in occupation of the suit property since the property was purchased.
10. Considering that the Plaintiffs have built on the suit property an orphanage home, a school and a clinic, it cannot lie in the mouth of the Defendant to say that the Plaintiffs may sell the property to third parties.
11. Indeed, it is the Defendants who are likely to dispose of the suit property if the two title deeds remain in their joint names.
12. Having not satisfactorily demonstrated the substantial loss that he shall suffer, and in view of the fact that the Plaintiffs are running a charitable organization on the suit property, I find and hold that the Application dated 19th June, 2015 is unmeritorious.
13. For those reasons, I dismiss the Application dated 19th June 2015 with costs.
Dated and delivered in Malindi this 30th day of October2015.
O. A. Angote
Judge