[2020] KEELC 280 (KLR)
The court found that the applicant had satisfied the threshold for the grant of a conditional stay of execution pending appeal, subject to the deposit of Kshs. 400,000 as security within 14 days. The court relied on Order 42 Rule 6 of the Civil Procedure Rules, which requires the applicant to demonstrate sufficient...
Source-derived case information.
- Citation
- [2020] KEELC 280 (KLR)
- Parties
- Appellant: Gideon Muchui Arithi; Respondent: Wilson Mutai
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E013 of 2020
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal, subject to deposit of security.
- Legal Topics
- Stay of Execution, Security for Costs, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gideon Muchui Arithi
Appellant
Wilson Mutai
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the ruling and orders of the Principal Magistrate's Court pending appeal.
- 2 Whether the applicant should provide security for the due performance of the decree as a condition for stay.
Ratio Decidendi
The court found that the applicant had satisfied the threshold for the grant of a conditional stay of execution pending appeal, subject to the deposit of Kshs. 400,000 as security within 14 days. The court relied on Order 42 Rule 6 of the Civil Procedure Rules, which requires the applicant to demonstrate sufficient cause and to provide security for the due performance of the decree. The court also considered the need to balance the interests of both parties and to ensure that the appeal is not rendered nugatory. The stay was granted conditionally, with a clear warning that failure to deposit the required security would result in the automatic lapse of the stay order.
Court Disposition
Conditional stay of execution granted pending appeal, subject to deposit of security.
Orders
- Prayer 2 for stay of execution is conditionally granted provided the applicant deposits Kshs. 400,000 as security within 14 days, failing which the stay lapses.
- The applicant must serve the application upon the defendant within 10 days.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
MERU ELC APPEAL CASE NO. E013 OF 2020
GIDEON MUCHUI ARITHI...................................APPELLANT
VERSUS
WILSON MUTAI...................................................RESPONDENT
AN APPEAL FROM THE RULING MAD/OR ORDERS IN E & L CASE
NUMBERS 22 OF 2020 IN THE PRINCIPAL MAGISTRATE’S COURT AT
TIGANIA BY HON. G. SOGOMO (PM) GIVEN AND/OR DELIVERED ON 03 DECEMER 2020)
BETWEEN
WILSON MUTAI..........................................................PLAINTIFF
VERSUS
GIDEON MUCHUI ARITHI...................................DEFENDANT
RULING
1. This application has been handled in chambers in the absence of the applicant due to Covid-19 concerns.
2. This application is dated 10th December, 2020 and seeks orders:
1. That this application be certified by this honourable court as extremely urgent and service of the same be dispensed with at the first instance and the same be heard exparte.
2. That pending the hearing and determination of this application, this honourable court be pleased to stay execution of, and all proceedings to, enforce the ruling and/or orders in the Principal Magistrate’s court at Tigania E&L Suit number 22 of 2020 delivered on 03 December, 2020 by Hon. G. Sogomo (PM)
3. That execution of, and all proceedings to, enforce the Ruling and/or orders in the Principal Magistrate’s court at Tigania E & L Suit Number 22 of 2020 delivered on 03 December, 2020 by Hon. G. Sogomo (PM) be stayed by this honorable court pending the hearing and determination of the Appellant’s Appeal.
4. That this honourable court be pleased to make such further orders as are necessary to serve the ends of justice in the matter.
5. That the costs of this application be in the cause.
3. The application is supported by the Appellant’s affidavit sworn on 10th December, 2020.
4. Having perused the pleadings in support of this application, I issue the following orders:
a) Prayer 2 in the application is conditionally granted in terms of the provisions of Order 42 Rule 6 of the Civil Procedure Rules provided that the applicant deposits with court as security within 14 days of today a sum of Kshs.400,000/= FAILING WHICH this conditional stay will automatically lapse.
b) The applicant should properly serve this application upon the defendant within 10 days of today.
c) The application will be heard interpartes by the Hon. Lady Justice Lucy Mbugua, ELC Judge at Meru, on 27th January, 2021.
Delivered in chambers at Chuka this 15th day of December, 2020 in the presence of:
CA: Ndegwa
Ruling to be transmitted electronically to the applicant.
P. M. NJOROGE,
JUDGE.