[2014] KEHC 2472 (KLR)
The court found that the appellants had brought the application for stay of execution without undue delay and had demonstrated that they would suffer substantial loss if evicted from the suit land, which is their home and where they reside with their families. In the interest of justice, the court exercised its...
Source-derived case information.
- Citation
- [2014] KEHC 2472 (KLR)
- Parties
- Appellant: Gediel Mugambi M'Imaria; Appellant: Stephen Meeme M'Imaria; Appellant: Timothy Kimathi M'Imaria; Respondent: Robert M'Impwi Mungania
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 11 of 2014
- Procedural Posture
- Stay Application / Ruling on Interlocutory Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed conditionally.
- Judges
- FM Njoroge
- Legal Topics
- Stay of Execution, Security for Due Performance, Eviction Proceedings, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gediel Mugambi M'Imaria
Appellant
Stephen Meeme M'Imaria
Appellant
Timothy Kimathi M'Imaria
Appellant
Robert M'Impwi Mungania
Respondent
Procedural Posture
Stay Application / Ruling on Interlocutory Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants are entitled to a stay of execution of the ex parte judgment and decree pending appeal.
- 2 Whether the appellants have demonstrated substantial loss if the stay is not granted.
- 3 Whether the application for stay was brought without undue delay.
Ratio Decidendi
The court found that the appellants had brought the application for stay of execution without undue delay and had demonstrated that they would suffer substantial loss if evicted from the suit land, which is their home and where they reside with their families. In the interest of justice, the court exercised its discretion to grant a stay of execution of the ex parte judgment and decree pending appeal, but made this conditional upon the appellants depositing Kshs. 350,000 as security within 14 days. Failure to comply with this condition would result in the lapse of the stay order, allowing the respondent to execute the judgment and decree.
Court Disposition
Application for stay of execution allowed conditionally.
Orders
- Prayer 3 of the application for stay of execution pending appeal is allowed, subject to the appellants depositing Kshs. 350,000 in court as security within 14 days.
- If the security is not deposited within 14 days, the stay order will lapse and the respondent will be at liberty to execute the judgment and decree.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
HCA 11 OF 2014
GEDIEL MUGAMBI M'IMARIA...........................1ST APPELLANT
STEPHEN MEEME M'IMARIA............................2ND APPELLANT
TIMOTHY KIMATHI M'IMARIA............................3RD APPELLANT
VERSUS
ROBERT M'IMPWI MUNGANIA...............................RESPONDENT
R U L I N G
This application is dated 22. 4.2014 and seeks orders:
THAT this application be certified as extremely urgent and the same be heard exparte in the 1st instance.
THAT pending interpartes hearing of this application, an order be issued, staying the execution of the Exparte judgment and decree dated 4. 11. 2013 delivered in Maua CMCC NO.100 of 2007.
THAT pending the hearing and determination of the Appeal, an order be issued, staying the execution of the Exparte judgment and decree dated 4. 11. 2013 delivered in MAUA CMCC No.100 of 2007.
THAT costs of the application be provided for.
It is supported by the Affidavit of Stephen Meme M'Imaria the 2nd appellant and on, inter alia, the following grounds:
(a) THAT this application has been brought timeously.
(b) THAT the applicants stand to suffer substantial loss if they are evicted from the suit land, as that is where they were born and brought up.
(c) THAT the applicants have the suit land extensively and live with their families on the suit land.
The application is opposed by the replying affidavit of Robert M'Impwi Mungania the respondent. In his replying affidavit he says that the appellants had filed an application seeking to stay execution of the lower courts judgment. I find that this application had been filed in the lower court. The affidavit also contains many assertions which can only be ventilated at the hearing of the intended appeal if it is eventually admitted.
This application was slated for inter partes hearing on 16. 7. 2014 when only the applicants advocate came to court even though the respondents advocate was in court when the hearing date was fixed.
I have considered the averments of the parties and the submissions of the applicant. Considering all things in the circumstances of this suit, I find it necessary in the interest of justice that I allow prayer 3 of the application subject to the following conditions:
The applicant deposits in court a sum of Kshs.350,000/= as security within 14 days hereof.
Should order 1 above not be complied with within the stipulated period the order allowing stay of Execution of the judgment and decree in CMCC No.100 of 2007 will LAPSE with the consequence that the respondent will be at liberty to execute the apposite Judgment and Decree.
It is so ordered.
Delivered in Open Court at Meru this 24th day of July, 2014 in the presence of:
Daniel/Lilian
Kaumbi h/b Mwirigi for Applicant
No representation for Respondent
P. M. NJOROGE
JUDGE