[2020] KEELC 3294 (KLR)
The court found that the applicant had demonstrated that he would suffer substantial loss if stay was not granted, as he had developed the suit land and this was not controverted by the respondent. The court also found that the application and memorandum of appeal were filed without undue delay. The issue of whether...
Source-derived case information.
- Citation
- [2020] KEELC 3294 (KLR)
- Parties
- Appellant: Fred Wafula Wamalwa; Respondent: Lepose LeBoo Julius
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 28 of 2019
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application allowed
- Judges
- MN Kullow
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Costs, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fred Wafula Wamalwa
Appellant
Lepose LeBoo Julius
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order of stay of execution pending appeal.
- 2 Whether the applicant will suffer substantial loss if stay is not granted.
- 3 Whether the application for stay was filed without undue delay.
Ratio Decidendi
The court found that the applicant had demonstrated that he would suffer substantial loss if stay was not granted, as he had developed the suit land and this was not controverted by the respondent. The court also found that the application and memorandum of appeal were filed without undue delay. The issue of whether the appeal is arguable would be determined at the hearing of the appeal. On the basis of these findings, the court allowed the application for stay of execution pending appeal.
Court Disposition
application allowed
Orders
- The application dated 23rd October, 2019 for stay of execution is allowed.
- Costs of the application be in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
ELC APPEAL NO. 28 OF 2019
FRED WAFULA WAMALWA........APPELLANT
-VERSUS-
LEPOSE LEBOO JULIUS...........RESPONDENT
RULING
By a Notice of Motion dated 23rd October, 2019 the Applicant sought for orders of stay of execution of the decree made on 26th September, 2019 in Kilgoris SPMCC No. 83 of 2018. The Application was based on the grounds that the applicant being dissatisfied with the decision of the court and had filed an appeal before this court that the execution of the said decree in the absence of an order for stay of execution led him to suffer substantial loss and he had extensively developed the suit land, that the Appeal was filed without undue delay.
The application was opposed by the respondent by way of a replying affidavit in which he contends that the Applicant had obtained similar orders dated 30th October, 2019 at the Kilgoris Law courts and that the eviction had already taken place and further that the applicant had not made an application before the court that issued the decree. The respondent further contends that the applicant has not produced sufficient security.
I have considered the application before me and the submissions by the applicant. The court did not have the opportunity to see the respondent though he had been given time.
The grounds for the grant of orders of stay of execution is now well settled. A party must show that indeed he has an arguable appeal, that he will suffer substantial loss if the stay is not granted and the appeal and the application for stay were not filed without undue delay.
In the instant application whether the applicant has an arguable appeal will be determined at the hearing of the said appeal. However, since the applicant states that he has developed the suit land and had made substantial investment thereon which was not controverted by the respondent I find that if the application is not allowed he will suffer substantial loss. Further to the above I find that the application and the memorandum of appeal were filed without delay.
The upshot of my finding is that the application dated 23rd October, 2019 is merited and I accordingly allow the same.
Costs of the application be in the cause.
DATED, SIGNED and DELIVERED in open court atNAROKon this 4TH day of MARCH, 2020
Mohammed Kullow
Judge
4/3/2020
In the presence of:-
CA:Chuma/Kimiriny
Mr Kilele holding brief for Maritim for the appellant
N/A for the respondent
Mohammed Kullow
Judge
4/3/2020