[2015] KEELC 603 (KLR)
The court found that the application for interim stay was not properly supported because the affidavit was sworn by counsel rather than the applicants themselves, who would have personal knowledge of the facts relevant to the application, such as who is in possession of the property and what loss might be suffered...
Source-derived case information.
- Citation
- [2015] KEELC 603 (KLR)
- Parties
- Applicant: George Ole Sangui; Applicant: Shokoret Ole Setabau; Applicant: Francis Patu Simpanoi; Applicant: Oleku Ole Punywa; Applicant: Sipale Ole Komeyan; Applicant: Ntika Ole Roka; Applicant: Dopoi Ole Nchoshoi; Applicant: Ateti Ole Nkume; Applicant: Terere Ole Maloi; Applicant: Kudate Ole Amboni; Applicant: Lengututi Ole Lesiri; Applicant: Kooli Ole Karatina Mututua; Respondent: Kedong Ranch Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 21 of 2010
- Procedural Posture
- Stay Application / Ruling on Interim Stay Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- MA Silau
- Legal Topics
- Stay of Execution, Interim Orders, Affidavit Evidence, Possession of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Ole Sangui
Applicant
Shokoret Ole Setabau
Applicant
Francis Patu Simpanoi
Applicant
Oleku Ole Punywa
Applicant
Sipale Ole Komeyan
Applicant
Ntika Ole Roka
Applicant
Dopoi Ole Nchoshoi
Applicant
Ateti Ole Nkume
Applicant
Terere Ole Maloi
Applicant
Kudate Ole Amboni
Applicant
Lengututi Ole Lesiri
Applicant
Kooli Ole Karatina Mututua
Applicant
Kedong Ranch Limited
Respondent
Procedural Posture
Stay Application / Ruling on Interim Stay Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to an interim stay of execution pending the filing of an application for stay pending appeal before the Court of Appeal.
- 2 Whether the supporting affidavit is properly sworn by a competent person with knowledge of the relevant facts.
Ratio Decidendi
The court found that the application for interim stay was not properly supported because the affidavit was sworn by counsel rather than the applicants themselves, who would have personal knowledge of the facts relevant to the application, such as who is in possession of the property and what loss might be suffered if stay is not granted. The court held that such critical matters must be deponed by the applicants, not their advocate. Consequently, the court was not persuaded that the circumstances justified the grant of an interim stay and dismissed the application with costs, noting that the applicants remain at liberty to pursue stay before the Court of Appeal.
Court Disposition
application dismissed with costs
Orders
- The application for interim stay pending appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
CIVIL SUIT NO 21 OF 2010
GEORGE OLE SANGUI …………...……..…..1ST APLICANT
SHOKORET OLE SETABAU……......…..…2ND APPLICANT
FRANCIS PATU SIMPANOI……...….……..3RD APPLICANT
OLEKU OLE PUNYWA………....……………4TH APPLICANT
SIPALE OLE KOMEYAN……....…..……….5TH APPLICANT
NTIKA OLE ROKA…………...….…..……….6TH APPLICANT
DOPOI OLE NCHOSHOI…..….…...………7TH APPLICANT
ATETI OLE NKUME…………….….……….8TH APPLICANT
TERERE OLE MALOI……….….…………9TH APPLICANT
KUDATE OLE AMBONI ………..…..……10TH APPLICANT
LENGUTUTI OLE LESIRI………...……….11TH APPLICANT
KOOLI OLE KARATINA MUTUTUA….....12TH APPLICANT
VERSUS
KEDONG RANCH LIMITED……….....……….RESPONDENT
RULING
1. The application before me is that dated 9th February 2015. The applicants seek a stay of the judgment pending hearing of an intended application for stay pending appeal before the court of Appeal. Mr Otieno for the applicants urged the application. The application is opposed by Mr Kadima for the respondent.
2. I have considered the application and the submissions of counsel. What the applicants want is to be granted an interim stay pending the filing of an application for stay pending appeal before the Court of Appeal. The applicants of course have under the provisions of order 42 Rule 6, leeway to obtain stay pending appeal in this court, but that is not what they want. They want to pursue the issue of stay pending appeal before the Court of Appeal and not this court, and what they now ask, is only an interim stay as they prepare their application for consideration by the Court of Appeal.
3. The application is supported by the affidavit of Mr. Willis Evans Otieno who is a also counsel for the applicants. Various matters of fact have been deponed which in my view ought to have been deponed by the applicants themselves. There are critical questions such as who is in possession and what loss may be suffered if stay is not granted that can only, in my view, be stated by the applicants themselves. I am therefore of the opinion that the application is not properly supported by an appropriate affidavit.
4. I am not therefore persuaded that this is a fit case to grant the stay sought. I dismiss the application with costs.
5. The applicants can of course still apply to the Court of Appeal for stay and they many pursue that avenue.
It is so ordered
Dated, signed and delivered in open court at Nakuru this 19th day of February 2015
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU
In presence of :-
Mr Willis Otieno for applicant
Mr Kadima for respondent
Emmanuel Maelo : CA
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU