[2018] KEELC 1832 (KLR)
The court found that the applicant had provided a plausible account for seeking a stay of proceedings, as the subject matter of the present suit (land parcel Abogeta/U-Kithangari/1947) was derived from the parcel in dispute in Meru HCCA No. 34 of 2009 (Abogeta/U-Kithangari/1231). The court accepted that the outcome...
Source-derived case information.
- Citation
- [2018] KEELC 1832 (KLR)
- Parties
- Plaintiff: Francis Mbae Ndereba; Defendant: Stephen Murithi Mbijiwe; Defendant: Francis Kirimi Mbijiwe; Defendant: Julius Kiambi Mbijiwe; Defendant: Kimathi Mbijiwe; Defendant: Mwiti Mbijiwe; Defendant: Kinyua Mbijiwe
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 73 of 2011
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- Application for stay of proceedings allowed for a limited period.
- Legal Topics
- Stay of Proceedings, Pending Appeal, Land Ownership Dispute, Subdivision of Land, Succession and Inheritance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Francis Mbae Ndereba
Plaintiff
Stephen Murithi Mbijiwe
Defendant
Francis Kirimi Mbijiwe
Defendant
Julius Kiambi Mbijiwe
Defendant
Kimathi Mbijiwe
Defendant
Mwiti Mbijiwe
Defendant
Kinyua Mbijiwe
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the proceedings in this suit should be stayed pending the determination of Meru HCCA No. 34 of 2009.
- 2 Whether the subject matter in this suit and the appeal are substantially the same to warrant a stay.
- 3 Whether the applicant will suffer prejudice if the suit proceeds before the appeal is determined.
Ratio Decidendi
The court found that the applicant had provided a plausible account for seeking a stay of proceedings, as the subject matter of the present suit (land parcel Abogeta/U-Kithangari/1947) was derived from the parcel in dispute in Meru HCCA No. 34 of 2009 (Abogeta/U-Kithangari/1231). The court accepted that the outcome of the appeal could potentially affect the determination of the present suit. However, the court also recognized the respondent's concern regarding delay and therefore limited the stay to a period of eight months. The court concluded that a temporary stay would balance the interests of both parties, preventing prejudice to the applicant while ensuring that the proceedings are...
Court Disposition
Application for stay of proceedings allowed for a limited period.
Orders
- There is to be a stay of these proceedings for a period of 8 months.
- Applicant is to bear the costs of this application.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC CASE NO. 73 OF 2011
FRANCIS MBAE NDEREBA...........................PLAINTIFF
VERSUS
STEPHEN MURITHI MBIJIWE...........1ST DEFENDANT
FRANCIS KIRIMI MBIJIWE...............2ND DEFENDANT
JULIUS KIAMBI MBIJIWE.................3RD DEFENDANT
KIMATHI MBIJIWE.............................4TH DEFENDANT
MWITI MBIJIWE...................................5TH DEFENDANT
KINYUA MBIJIWE................................6TH DEFENDANT
RULING
1. The application dated 17. 4.2018 seeks orders for stay of proceedings in this suit pending the hearing and determination of Meru HCCA No. 34 of 2009.
2 The grounds in support of this application are that this suit and Meru HCCA no. 34 of 2009 are in respect of the same subject matter being land parcels no. Abogeta/U-Kithangari/1231 (now subdivided into Abogeta/U-Kithangari/1947 and Abogeta/U-Kithangari/1948). Applicant claims that he stands to suffer if this suit is heard and determined before Meru HCCA 34 of 2009.
3. Applicant has filed a supporting affidavit where he has deponed as follows:
(i) That the land parcel no. Abogeta/U-Kithangari/1947 is the subject of this suit.
(ii) That appeal no. 34 of 2009 concerns land parcel no. Abogeta-U-Kithangari/1231 which belonged to their father, Alexander Mbijiwe M’Itiabi (deceased).
(iii) That the appellant in appeal no. 34 of 2009 is Jackim Muriuki Mbijiwe who is a brother of the applicant ,and who is also the legal representative of their deceased father Alexander Mbijiwe M’Itiabi.
(iv) That land parcel no. Abogeta/U-Kithangari/1947 the subject of this suit was hived out of land parcel No. Abogeta/U-Kithangar/1231 which belonged to their deceased father.
(v) That appeal no. 34 of 2009 is challenging the irregular transfer and sub-division of their father’s land by their half-brother Lucus Kimathi at a time when their father was already dead and before any succession had been filed.
(vi) That the appellant in appeal no. 34 of 2009 sub-divided their fathers land into two parcels Abogeta/U-Kithangari/1947 and Abogeta/U-Kithangari/1948 and this suit concerns the ownership of land parcel no. Abogeta/U-Kithangari/1947.
(vii) That if this case proceeds and is determined before the appeal no. 34 of 2009 is heard and determined, applicant will suffer great prejudice.
4. Plaintiff has opposed the application vide his replying affidavit dated 9. 7.2018 where he avers that:
(a) That the application is malicious and vexatious aimed at wasting the courts time in that the applicant and even respondent are not a parties in Meru HCCA No. 34 of 2009.
(b) That the appeal, HCCA no. 34 of 2009 is premised on the grounds challenging the orders of Hon. Ndubi (given on 2. 4.2009) which barred the appellant therein from being enjoined in CMCC No. 40 of 2008 as a legal representative.
(c) That the outcome of appeal HCCA No. 34 of 2009 shall not stand to affect the present suit herein.
(d) That the issues for determination in appeal HCCA no. 34 of 2009 are completely different with the issues in the present suit.
(e) That the applicants have approached this court in bad faith with the sole intention of delaying this matter as they continue enjoying tea leaves which up to now they have earned Kshs.33,000,000.
(f) That the applicant has not shown any prejudice he will suffer as this matter and HCCA no. 34 of 2009 have been pending for over 7 years.
5. I find that applicant has given plausible account of why he wants a stay of these proceedings. He avers that the subject matter of this suit is parcel no. Abogeta/U- Kithangari/1947 which was hived off from parcel no. Abogeta/Kithangari/1231 which is the subject matter in H.C.C No. 34 of 2009. These averments are clearly captured in paragraph 4 of the plaint.
6. I note that respondent is worried about the issue of delay. I will therefore allow the application for a limited period of eight months only.
7. Final orders;
(1) There is to be a stay of these proceedings for a period of 8 months.
(2) Applicant is to bear the costs of this application.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 26TH DAY OF SEPTEMBER, 2018 IN THE PRESENCE OF:-
Court Assistant: Janet/Galgalo
Rimita holding brief for Kithaka for applicants
1st and 3rd defendants
HON. LUCY. N. MBUGUA
ELC JUDGE