[2008] KEHC 3596 (KLR)
The court found that the respondent is already in occupation of a portion of the disputed land and will not be prejudiced by the grant of a stay of execution. The applicant has undertaken not to dispose of the land and to maintain the status quo. The court considered the undertakings and the fact that the respondent...
Source-derived case information.
- Citation
- [2008] KEHC 3596 (KLR)
- Parties
- Plaintiff: Francis Njeru Rabuta; Defendant: Njuki Rabuta
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 67 of 2002
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed.
- Legal Topics
- Stay of Execution, Security for Costs, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Njeru Rabuta
Plaintiff
Njuki Rabuta
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution pending appeal should be granted in respect of land registered as Evurori/Nguthi/1507.
- 2 Whether the applicant should provide security for the due performance of any order that may be binding on him.
- 3 Whether the respondent will be prejudiced by the grant of stay.
Ratio Decidendi
The court found that the respondent is already in occupation of a portion of the disputed land and will not be prejudiced by the grant of a stay of execution. The applicant has undertaken not to dispose of the land and to maintain the status quo. The court considered the undertakings and the fact that the respondent will continue in occupation while the applicant occupies the rest of the land. On this basis, the court exercised its discretion to grant a stay of execution pending appeal, subject to the applicant depositing KES 50,000 as security for any order that may ultimately be found binding on him.
Court Disposition
Application for stay of execution pending appeal allowed.
Orders
- Stay of execution granted as prayed.
- Applicant to deposit KES 50,000 in court as security within 30 days.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Civil Case 67 of 2002
FRANCIS NJERU RABUTA…………………...…………..PLAINTIFF
VERSUS
NJUKI RABUTA…………………………………………DEFENDANT
RULING
Application dated 8/11/2007 for stay of execution pending proceedings towards appeal in the court of appeal. The subject matter of appeal is land registered as Evurori/Nguthi/1507 affecting the applicant’s title to land. The Applicant says that he is ready to give an undertaking not to dispose of the land pending the determination of the proposed application and appeal.
One fact which is disclosed is that the Respondent occupies a portion of land where he has built his homestead and the applicant undertakes to maintain the status quo.
I have read the Replying Affidavit and considered the undertakings offered by applicant particularly the fact that the Respondent has been in occupation of the 3 acres out of the land in dispute. Respondent is in possession he will not be prejudiced in the granting of stay. He will continue in occupation while the applicant can occupy the rest of the land. Considering the whole situation I am inclined to allow the application and I grant orders as prayed. In addition the Applicant shall deposit in court a sum of Shs.50,000/= as security for any order that may ultimately be found binding on him. I order the deposit to be deposited within next 30 days. The costs to the Respondent in any case.
Orders accordingly.
Dated this 1st February, 2008.
J. N. KHAMINWA
JUDGE
1/2/2008
Khaminwa – Judge
Njue- Clerk
Mr. Ithiga HB
Read in open court.
J. N. KHAMINWA
JUDGE