[2016] KEELC 1079 (KLR)
The court found that there is a pending appeal before the Court of Appeal and that execution of the judgment would disturb the current occupation of the applicants on the ancestral land. The court held that, on the balance of convenience, a stay of execution should be granted pending the hearing of the appeal, as...
Source-derived case information.
- Citation
- [2016] KEELC 1079 (KLR)
- Parties
- Applicant: Fredrick Makokha; Respondent: Peter Sifuna Wasina; Respondent: Johnstone Maketa Waswa; Respondent: Wangila Waswa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 49 of 2009
- 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, Pending Appeal, Substantial Loss, Balance of Convenience, Ancestral Land, Occupation Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Makokha
Applicant
Peter Sifuna Wasina
Respondent
Johnstone Maketa Waswa
Respondent
Wangila Waswa
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether substantial loss will be suffered by the applicant if stay is not granted.
- 3 Whether the balance of convenience favors granting a stay of execution.
Ratio Decidendi
The court found that there is a pending appeal before the Court of Appeal and that execution of the judgment would disturb the current occupation of the applicants on the ancestral land. The court held that, on the balance of convenience, a stay of execution should be granted pending the hearing of the appeal, as the respondents would not suffer prejudice by waiting for the appeal to be determined. The costs of the application were ordered to abide by the outcome of the appeal.
Court Disposition
Application for stay of execution pending appeal allowed.
Orders
- A stay of execution is granted pending the hearing of the appeal in the Court of Appeal.
- The costs of this application shall abide with the outcome of the appeal.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT BUNGOMA
ENVIRONMENT AND LAND COURT
CIVIL CASE NO.49 OF 2009 (O.S)
FREDRICK MAKOKHA....................................................APPLICANT
VERSUS
PETER SIFUNA WASINA )
JOHNSTONE MAKETA WASWA )
WANGILA WASWA )..............................RESPONDENTS
R U L I N G
[1] The applicant herein filed an application under Section 1A 3,3A and 63e of the Civil Procedure Act and order 42 Rule 6(1) (2) 6 of the Civil Procedure Rules. He prays for a stay of execution of the decree herein pending the determination of Eldoret Court of Appeal No.23 of 2015.
[2] The applicant supported his affidavit by an affidavit of one Francis Makokha. He relied on that affidavit and stated that the applicant is on the land. Further that the appeal has high chances of success. They argued that if the order is not granted, their appeal will be rendered nugatory.
[3] The respondent opposed the application through an affidavit of Maketa Waswa sworn on 15. 11. 2015. It was argued that the applicant had not established conditions for stay. That there was no substantial loss shown that was to be suffered by the applicants. That the applicants are in occupation and that they would suffer no prejudice.
[4] Having listened to the arguments of the parties, I note that they are all relatives. The land is ancestral land which belonged to their father. It is also land where some of them occupy. It has not been disputed that there is an appeal pending before the court of Appeal at Eldoret. There is a judgment of the court that might be executed against the applicants. Such an execution would disturb the current occupation of the appellants on the suit land.
[5] On the balance of convenience, I order a stay of execution pending the hearing of the Appeal in the court of Appeal. I do not think the respondents will suffer any prejudice by waiting for the appeal to be heard. The costs of this application shall abide with the outcome of the appeal.
It is so ordered.
S.MUKUNYA
JUDGE
27/1/2016
DATED at Bungoma this 9th day of March 2016.
S.MUKUNYA
JUDGE