[2020] KEELC 2114 (KLR)
The court found that the appellant had been granted a 60-day stay by the lower court, which had expired. The appellant demonstrated that unless a further stay was granted, the respondent could execute the decree, potentially rendering the appeal nugatory and causing substantial loss to the appellant, who is a bona...
Source-derived case information.
- Citation
- [2020] KEELC 2114 (KLR)
- Parties
- Appellant: George Laton Hapu; Respondent: Ikote Ole Parkire; Respondent: Agricultutal Finance Corporation
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Appeal 19 of 2019
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application for stay of execution allowed
- Judges
- MN Kullow
- Legal Topics
- Stay of Execution, Substantial Loss, Appeal Process, Title Cancellation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Laton Hapu
Appellant
Ikote Ole Parkire
Respondent
Agricultutal Finance Corporation
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant has established sufficient grounds for grant of stay of execution of the lower court's judgment pending appeal.
- 2 Whether the appellant will suffer substantial loss if the stay is not granted.
- 3 Whether the application for stay was filed without undue delay and with adequate security.
Ratio Decidendi
The court found that the appellant had been granted a 60-day stay by the lower court, which had expired. The appellant demonstrated that unless a further stay was granted, the respondent could execute the decree, potentially rendering the appeal nugatory and causing substantial loss to the appellant, who is a bona fide purchaser for value. The respondent did not raise sufficient grounds to warrant interference with the stay. The court was satisfied that the requirements under Order 42 Rule 6 of the Civil Procedure Rules were met, and therefore allowed the application for stay of execution pending appeal.
Court Disposition
application for stay of execution allowed
Orders
- An order for stay of execution of the judgment of the lower court delivered on 7th August, 2019 in ELC 39 of 2018 for a period of 30 days is granted.
- Costs of and incidental to this application to abide the result of the intended appeal.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
APPEAL NO. 19 OF 2019
GEORGE LATON HAPU.....................................................................APPELLANT
-VERSUS-
IKOTE OLE PARKIRE............................................................1ST RESPONDENT
AGRICULTUTAL FINANCE CORPORATION....................2ND RESPONDENT
RULING
By a Notice of Motion dated 25/10/19 the Appellant /Applicant sought for orders for: -
(1) Spent
(2) Spent
(3) That an order for stay of execution of the judgment of the lower court delivered on 7th August, 2019 in ELC 39 of 2018 for a period of 30 days be issued
(4) That any other order that the court may deem fit and just
(5) Costs of and incidental to this application do abide the result of the intended appeal.
The Application is based on the grounds that the Magistrate court in ELC No. 39 of 2018 had ordered the cancellation of the Appellant’s title deed and an order for stay of 60 days was issued by the court, however the decree of the court is yet to be extracted and served upon him and the six days for stay has since lapsed and unless the orders sought are not granted the respondent may move to execute the decree and thus make the appeal herein nugatory. The application was supported by the affidavit of the appellant.
The application was opposed by the 1st Respondent who avers that the application has been made in bad faith and is meant to deny him the fruit of his litigation and no sufficient cause has been given to enable the grant of stay of execution for 30 days and further that the Appellant has not shown how he will suffer substantial loss since he is not even in possession of the suit.
The respondent in his opposition to application further contended that the appellant does not need the decree to prepare and file his appeal.
I have read the application and the submissions made by both the parties. Order 42 Rule 6 of the Civil Procedure Rules outlines the grounds one must establish before the grant of stay of execution is granted and thus the court must satisfy itself that substantial loss my result to the appellant unless the stay is granted. Secondly the application must have been filed without undue delay and such security has been given by the applicant which must be binding.
In the instant application the applicant contends that he was granted a stay of 60 days by the lower trial court but the same has expired as he was not able to extract the decree and he is a bonafide purchaser for value of the suit land and unless the stay is granted he will suffer substantially. I have noted that the applicant had purchased the suit land and that a stay was granted by the lower court taking into account the circumstances of the case before it. I have not seen any other issue that the respondent has placed before court to make interfere with the stay granted by the lower court and furthermore, unless the stay is granted the respondent could greatly interfere with the suit and thus render the Appeal nugatory and in the circumstance the appellant will suffer substantial loss if the order of stay is not granted and I will thus allow the notice of motion dated 25th October, 2019.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAROK ON THIS 27TH DAY OF MAY, 2020.
Mohamed Kullow
Judge
27/5/2020
In the presence of:
CA:Chuma
Mr Kinyanjui for the appellant/applicant
Ms Saika holding brief for Orege for the 1st Respondent
Mohamed Kullow
Judge
27/5/2020