[2023] KEELC 18513 (KLR)
The court found that the applicants had remained in occupation of the disputed portions of land peacefully and that the balance of convenience required maintenance of the status quo to prevent either party from developing the land in contention until the appeal was determined. The court exercised its discretion to...
Source-derived case information.
- Citation
- [2023] KEELC 18513 (KLR)
- Parties
- Plaintiff: Nyakweba Gesanda; Plaintiff: Japhet Mayaka Mong’Are; Plaintiff: William Mwasi Ocharo; Plaintiff: Nyachiro Obanyi; Plaintiff: Peter Mosomi Ondieki; Plaintiff: Andrew Nyamora Obanyi; Plaintiff: Nyachiro Kibwogo; Plaintiff: Benson Omboga Kibwogo; Plaintiff: Mwamiyogo Self Help Group; Plaintiff: Seventh Day Adventist Church EA Ltd; Defendant: The School Committee Nyamwetureko Primary School; Defendant: The County Land Registrar, Nyamira; Defendant: The County Surveyor
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 34 of 2021
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Status quo order granted; parties restrained from developing the disputed land pending appeal.
- Judges
- JM Kamau
- Legal Topics
- Stay of Execution, Status Quo Orders, Boundary Disputes, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyakweba Gesanda
Plaintiff
Japhet Mayaka Mong’Are
Plaintiff
William Mwasi Ocharo
Plaintiff
Nyachiro Obanyi
Plaintiff
Peter Mosomi Ondieki
Plaintiff
Andrew Nyamora Obanyi
Plaintiff
Nyachiro Kibwogo
Plaintiff
Benson Omboga Kibwogo
Plaintiff
Mwamiyogo Self Help Group
Plaintiff
Seventh Day Adventist Church EA Ltd
Plaintiff
The School Committee Nyamwetureko Primary School
Defendant
The County Land Registrar, Nyamira
Defendant
The County Surveyor
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to an order for stay of execution or maintenance of status quo pending appeal.
- 2 Whether the applicants have demonstrated sufficient grounds for the grant of stay, including risk of irreparable harm and arguable appeal.
- 3 Whether the respondents would be prejudiced by the grant of stay or status quo orders.
Ratio Decidendi
The court found that the applicants had remained in occupation of the disputed portions of land peacefully and that the balance of convenience required maintenance of the status quo to prevent either party from developing the land in contention until the appeal was determined. The court exercised its discretion to order that the prevailing status quo be maintained, with none of the parties allowed to develop the disputed land, thereby preserving the subject matter of the appeal and preventing irreparable harm or rendering the appeal nugatory. The court did not grant a full stay of execution but opted for a status quo order as a proportionate remedy in the circumstances.
Court Disposition
Status quo order granted; parties restrained from developing the disputed land pending appeal.
Orders
- The status quo prevailing as at the date of the ruling shall be maintained.
- None of the parties shall develop the portion of land in contention until the determination of the intended appeal.
Full Case Text
Judgment text and source record
40 paragraphs
Gesanda & 9 others v School Committee Nyamwetureko Primary School & 2 others (Environment & Land Case 34 of 2021) [2023] KEELC 18513 (KLR) (5 July 2023) (Ruling)
Neutral citation: [2023] KEELC 18513 (KLR)
Republic of Kenya
In the Environment and Land Court at Nyamira
Environment & Land Case 34 of 2021
JM Kamau, J
July 5, 2023
Between
Nyakweba Gesanda
1st Plaintiff
Japhet Mayaka Mong’Are
2nd Plaintiff
William Mwasi Ocharo
3rd Plaintiff
Nyachiro Obanyi
4th Plaintiff
Peter Mosomi Ondieki
5th Plaintiff
Andrew Nyamora Obanyi
6th Plaintiff
Nyachiro Kibwogo
7th Plaintiff
Benson Omboga Kibwogo
8th Plaintiff
Mwamiyogo Self Help Group
9th Plaintiff
Seventh Day Adventist Church EA Ltd
10th Plaintiff
and
The School Committee Nyamwetureko Primary School
1st Defendant
The County Land Registrar, Nyamira
2nd Defendant
The County Surveyor
3rd Defendant
Ruling
1. The Judgment Debtor’s Application is dated March 30, 2023. Judgment was pronounced in this case on March 2, 2023, when the injunction in place during the pendency of the suit automatically lapsed. According to the Decree dated March 2, 2023 from this court, the Plaintiff prayed for: -a.An order compelling the 2nd and 3rd Defendants to determine the boundary between land parcels numbers West Mugirango Siamani/1101 On One Hand And Land Parcels Numbers West Mugirango/siamani/5515, 1540, 807, 3733, 2371, 3417, 779, 3978 and 4657 and the events the 1st Defendant found to have encroached to any portion of the said Plaintiffs lands an order of eviction do issue against the said Defendant itself, its agents, servants and/or any persons acting on its behalf.b.Costs of this suit.c.Any other relief the court may deem fit to grant.The said case was dismissed with costs.
2. On March 7, 2023 the Plaintiffs, being dissatisfied with the whole decision filed a Notice of Appeal and on March 30, 2023 sought for a stay of execution of the Decree or maintenance of the Status Quo currently prevailing on the suit lands. They say they were pushed by the apprehension that the 1st Defendant/Respondent may proceed to enter into the disputed portions leading to serious loss and damage to the Judgment Debtors’ parcel of land the Decree Holder and may even put up permanent structures thereon. The 1st Decree Holder filed a Replying Affidavit on May 9, 2023 sworn on the previous date opposing the said Application on the ground that the same is being calculated to deny the 1st Respondent an opportunity to enjoy the fruits of her Judgment and continue to deprive her of her lawful proprietory rights. She argues that the same is disguised as stay but is a continuation of the temporary injunctive orders in place before the Judgment. She also depones that the Applicant has not shown that the Appeal has chances of success and that the school would continue suffering lack of use of her land.
3. I have read both Submissions and wish to observe from the outset that stay of execution is a discretion of the court accorded to the party who intends to Appeal and who feels that should he succeed on Appeal and the subject matter has already changed hands, then he is going to suffer irreparable harm and the Judgment shall be rendered nugatory. In this particular case, I observe that since the parties have remained in occupation of the portions they were occupying before Judgment but peacefully, I would order that the Status Quo prevailing today be maintained and that none of the parties should develop the portion of land in contention until the determination of the intended Appeal.
RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 5TH DAY OF JULY, 2023. MUGO KAMAUJUDGEIn the Presence of:-Court Assistant: SibotaPlaintiffs: 1stPlaintiff present in personDefendants: Ms. Opiyo for 2nd& 3rdDefendants