[2019] KEELC 3645 (KLR)
The court found that the applicant had demonstrated sufficient grounds for the grant of stay of execution, noting that he was in possession of the suit land and had extensively developed it. The court recognized the practical difficulties in promptly filing an appeal due to the need to compile typed proceedings. The...
Source-derived case information.
- Citation
- [2019] KEELC 3645 (KLR)
- Parties
- Plaintiff: Geoffrey Nkonge Mairanyi; Defendant: Thiuru M’Ringera; Defendant: Timonth Kimathi Marete
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 90 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed.
- Legal Topics
- Stay of Execution, Adverse Possession, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Nkonge Mairanyi
Plaintiff
Thiuru M’Ringera
Defendant
Timonth Kimathi Marete
Defendant
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 of the judgment and decree pending appeal.
- 2 Whether the applicant will suffer substantial loss if the stay is not granted.
- 3 Whether the court is functus officio after delivery of judgment.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient grounds for the grant of stay of execution, noting that he was in possession of the suit land and had extensively developed it. The court recognized the practical difficulties in promptly filing an appeal due to the need to compile typed proceedings. The court also considered that the period of occupation was not disputed, and that the applicant or his son was in occupation of the suit land. In the circumstances, the court exercised its discretion to grant a stay of execution for a limited period of eight months to allow the applicant to pursue his appeal. The court further ordered the applicant to pay the costs of the...
Court Disposition
Application for stay of execution allowed.
Orders
- An order of stay of the judgment and decree of 8.11.2018 is hereby issued for a period of 8 months from the date of delivery of this ruling.
- Applicant is to pay costs of this application.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND OCURT
AT MERU
ELC CASE NO. 90 OF 2013 (OS)
GEOFFREY NKONGE MAIRANYI..................................... PLAINTIFF
VERSUS
THIURU M’RINGERA...................................................1ST DEFENDANT
TIMONTH KIMATHI MARETE..................................2ND DEFENDANT
RULING
1. In the application filed on 20. 11. 2018, applicant/plaintiff is seeking for an order of stay of execution of the judgment and decree of 8. 11. 2018 pending appeal.
2. The grounds in support of the application are set out in the body of the application and in his supporting affidavit.
3. He avers that he stands to suffer substantial loss if the stay is not granted. He also contends that he is in possession of the suit land which he has extensively developed.
4. The application is opposed by the respondents who aver that the court is functus officio in this matter. It is further argued that no appeal has been filed and that the intended appeal has no merits.
5. I have considered all the arguments advanced by the parties. I am alive to the fact that where as an aggrieved party in respect of a judgment/decree or order delivered has a right to seek redress in the hierarchal systems of the court, the actual process of appeal is rigorous and entails compiling of the typed proceedings. Thus applicant may need some time to present his appeal before the court of appeal.
6. I have also considered the contents of paragraph 29 of my judgment where by plaintiff’s claim on adverse possession failed because of the computation of time whereby the period in question was found to be either 10 years and 9 months or 11 years and 3 months. It was not disputed that plaintiff or rather his son was the one in occupation of the suit land.
7. In such circumstances I find that applicant’s prayers are merited. I allow the application in the following terms:
8. An order of stay of the judgment and decree of 8. 11. 2018 is hereby issued for a period of 8 months from date of delivery of this ruling.
9. Applicant is to pay costs of this application.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 25TH DAY OF APRIL, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Karanja holding brief for H. Gitonga for applicant/plaintiff
Kaburu holding brief for Kimathi I. for respondent
Defendants
HON. LUCY. N. MBUGUA
ELC JUDGE