[2023] KEELC 17309 (KLR)
The court found that since the defendants had already filed an application for stay of execution at the Court of Appeal, which had been certified as urgent and was pending determination, it would be prudent and in the interests of justice to stay the plaintiff's application for eviction and allow the defendants'...
Source-derived case information.
- Citation
- [2023] KEELC 17309 (KLR)
- Parties
- Plaintiff: Teresia Wangari Gachoka (Suing as the Administrator of the Estate of the Late Gachoka Kahawa); Defendant: Samuel Ndung’u Nduta; Defendant: Wilson Mwathi Njoroge
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E003 of 2021
- Procedural Posture
- Environment and Land Case / Ruling on Post Judgment Applications for Eviction and Stay of Execution
- Outcome
- Plaintiff's eviction application stayed; defendants' application for stay of execution allowed in part; costs to abide appellate outcome.
- Judges
- FM Njoroge
- Legal Topics
- Eviction Orders, Stay of Execution, Post Judgment Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresia Wangari Gachoka (Suing as the Administrator of the Estate of the Late Gachoka Kahawa)
Plaintiff
Samuel Ndung’u Nduta
Defendant
Wilson Mwathi Njoroge
Defendant
Procedural Posture
Environment and Land Case / Ruling on Post Judgment Applications for Eviction and Stay of Execution
Legal Issues
- 1 Whether the plaintiff is entitled to eviction orders against the defendants pending the outcome of the appeal.
- 2 Whether the defendants are entitled to a stay of execution of the judgment and decree pending determination of their application at the Court of Appeal.
Ratio Decidendi
The court found that since the defendants had already filed an application for stay of execution at the Court of Appeal, which had been certified as urgent and was pending determination, it would be prudent and in the interests of justice to stay the plaintiff's application for eviction and allow the defendants' application for stay of execution. This approach would preserve the status quo and prevent the appeal from being rendered nugatory. The court therefore stayed the plaintiff's eviction application and allowed the defendants' application for stay in terms of the specified prayers, with costs to abide the outcome of the appellate proceedings.
Court Disposition
Plaintiff's eviction application stayed; defendants' application for stay of execution allowed in part; costs to abide appellate outcome.
Orders
- The plaintiff’s Notice of Motion Application dated March 7, 2023 is stayed pending the outcome of Nakuru Civil Application No E006 of 2023.
- The defendant’s Notice of Motion dated April 6, 2023 is allowed in terms of prayers Nos (b), (c) and (g) thereof.
Full Case Text
Judgment text and source record
19 paragraphs
Gachoka (Suing as the Administrator of the Estate of the Late Gachoka Kahawa) v Nduta & another (Environment & Land Case E003 of 2021) [2023] KEELC 17309 (KLR) (11 May 2023) (Ruling)
Neutral citation: [2023] KEELC 17309 (KLR)
Republic of Kenya
In the Environment and Land Court at Nakuru
Environment & Land Case E003 of 2021
FM Njoroge, J
May 11, 2023
Between
Teresia Wangari Gachoka (Suing as the Administrator of the Estate of the Late Gachoka Kahawa)
Plaintiff
and
Samuel Ndung’u Nduta
1st Defendant
Wilson Mwathi Njoroge
2nd Defendant
Ruling
1. I have perused the file record for this case. The plaintiff decree holder has filed an application for orders of eviction dated March 7, 2023 before this court. The defendants on the other hand have not only lodged their own application dated April 6, 2023 seeking the substantive prayer of stay of execution of the judgment and decree in this suit pending the hearing and determination of an application for stay of execution at the Court of Appeal but have also demonstrated they actually have filed such an application for stay at the Court of Appeal. A copy of the said Motion is exhibited in their application before this court being Nakuru Misc. Civil Application No E006 of 2023 and a copy of a letter from the Deputy Registrar dated January 31, 2023 indubitably stamps veracity on that fact by informing both counsel for the parties herein that the Motion before court has been certified as urgent and a timeframe for filing submissions by the parties has been issued, with the parties being informed that they would be notified of the hearing date once fixed.
2. Upon disclosure of the above set of facts, and noting that the application by the plaintiff seeks eviction orders while the Nakuru Civil Application No E006 of 2023 seeks stay of execution, this court herein, deferring to the Consent filed on April 12, 2023 permitting Gori Ombongi & Company Advocates to come on record post-judgment on the defendants’ behalf in the present suit, and deeming it prudent to order that parties do await the outcome of the stay application at the Appellate Court, issues the following orders:a.The plaintiff’s Notice of Motion Application dated March 7, 2023 is hereby stayed pending the outcome of Nakuru Civil Application No E006 of 2023;b.The defendant’s Notice of Motion dated April 6, 2023 is allowed in terms of prayers Nos (b), (c) and (g) thereof;c.As the determination of Nakuru Civil Application No E006 of 2023 will write finis to the issue of stay of execution, the rest of the prayers in the defendant’s Motion of April 6, 2023 are deemed as spent;d.The costs of the defendant’s Motion dated April 6, 2023 shall abide by the outcome of the Nakuru Civil Aplication No E006 of 2023. It is so ordered.
DATED, SIGNED AND DELIVERED AT NAKURU VIA ELECTRONIC MAIL ON THIS 11TH DAY OF MAY 2023. MWANGI NJOROGEJUDGE, ELC, NAKURU