[2011] KEHC 201 (KLR)
The court found that the applicants had established sufficient grounds for the grant of a stay of execution. The sale of the land by the respondent during the pendency of the appeal was improper, as the subject matter of the dispute should be preserved until the appeal is determined. The court held that if a stay...
Source-derived case information.
- Citation
- [2011] KEHC 201 (KLR)
- Parties
- Appellant: Grace Muthoni Gichungwa; Appellant: Salome Wanjiku Mbirwa; Respondent: Samwel Kibui Mbirwa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 311 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted as prayed.
- Legal Topics
- Stay of Execution, Injunctive Relief, Land Disputes Tribunal Appeals, Transfer of Land Pendente Lite
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Muthoni Gichungwa
Appellant
Salome Wanjiku Mbirwa
Appellant
Samwel Kibui Mbirwa
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted to prevent further dealings with land parcel LR Dagoretti/Thogoto/315 pending determination of the appeal.
- 2 Whether the sale and transfer of the land by the respondent during the pendency of the appeal was proper.
- 3 Whether the applicant has established grounds for the grant of an injunction or stay.
Ratio Decidendi
The court found that the applicants had established sufficient grounds for the grant of a stay of execution. The sale of the land by the respondent during the pendency of the appeal was improper, as the subject matter of the dispute should be preserved until the appeal is determined. The court held that if a stay was not granted, the applicants would suffer irreparable loss, and the appeal could be rendered nugatory. The application was brought promptly, and the court emphasized that no further dealings with the land should occur until the final determination of the appeal. Accordingly, the orders sought in the application dated 28th September 2011 were granted.
Court Disposition
Application for stay of execution granted as prayed.
Orders
- No further dealings with LR Dagoretti/Thogoto/315 until the determination of the appeal.
- Orders as prayed in the application dated 28th September 2011 are granted.
Full Case Text
Judgment text and source record
81 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 311 OF 2009
GRACE MUTHONI GICHUNGWA ……………………...…… APPELLANT/APPLICANT
SALOME WANJIKU MBIRWA …................................... 2ND APPELLANT/APPLICAN
VERSUS
SAMWEL KIBUI MBIRWA …………………….….. RESPONDENT/RESPONDENT
(Being an appeal from the whole decision of 29th April 2009 of the Lands Appeals Tribunal in LND/16/20/43/2004 in regard o land parcel Dagoretti/Thogoro/315)
R U L I N G
Application for Stay of Execution
Dated 28th September 2011
I.INTRODUCTION
1. The original appeal arises from a Land Disputes Tribunal matter before the Provincial Tribunal. Being dissatisfied with the decision of the tribunal, an appeal was preferred to this High Court on the
23rd June 2009.
2. No action appears to have been taken on this appeal by the courts through the Deputy Registrar.
3. The respondent sold the land parcel LR Dagoretti/Thogoto/315 and titles issued in August 2011. The other parcel of land LR Dagoretti/Thogoto 76 remained intact.
4. The Pronvincial Disputes Appeals Tribunal had given the respondent the land parcel Dagoretti/Thogoto/315.
5. The new buyers were to be enjoined to the appeal by application of 18th October 2011. This was granted by consent of the parties.
6. By an application 28th September 2011, the applicant prayed for stay of execution.
IIAPPLICATION 28TH SEPTEMBER 2011
7. The applicant/appellant was not aware that the land had been sold. She now prays that there be no further dealings on the land till the determination of the appeal.
8. In reply, the advocate for the interested party stated the application was more of an injunction in form. The ingredients of an injunction has not been established.
9. The respondent stated he sold the land and had no further interest in the matter.
IIIFINDINGS
10. Where a matter is pending in court and the issue concerns land, no transfer of the said land should be permitted regardless that there exists orders of stay and or injunction or dealings of the land.
11. The respondent should have moved the file and or requested the deputy registrar to list the file for dismissal before the Hon. Judge. Once this would have been granted then would he have proceeded to have further dealings with the land. As such I find that the applicants have established that they have established their application.
12. If the same would not be granted, it would cause irreparable loss.
13. The application was brought without inordinate delay. The development on the land began in August 2011.
14. I hereby grant the orders as prayed in the application of 28th September 2011.
DATED THIS 16TH DAY OF DECEMBER 2011 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i)R. Mutiso instructed by M/s R.M. Mutiso & Co Advocates for appellant/applicant
ii) L S Opundo instructed by Opundo & Co Advocates for respondent/ original plaintiff
Editorial Summary
1. Civil Appeal
2. Civil Practice and Procedure
3. Subject of Main Subordinate Court Case
LAND
3. 1 i) LR Dagoretti/Thogoto/76
ii) LR Dagoretti/Thogoto/315
3. 2 Land Disputes Tribunal Act
3. 3 Decision of Provincial Lands Tribunal
Gives land to respondent
LR Dagoretti/Thogoto/315
3. 4 Appellant files appeal on 23rd June 2009
3. 5 Prayer for the award to be set aside.
3. 6 No action taken by parties.
3. 7 Respondent sells land
LR Dagoretti/Thogoto/315
3. 8 Appellants file application dated
28th September 2011 for stay of execution.
3. 9 The two new buyers apply to be enjoined
To the appeal suit – application granted on
1/11/2011 (Angawa J)
3. 10 Should stay of execution be granted?
4. Application 28th September 2011
a) Pending the appeal respondent sells land
to interested party.
b) Prays that, if stay is not granted than the appeal
will be rendered nugatory.
c) Whereas transfer occurs, there should stay of
any dealings of the property till finalization of
the appeal.
5. In reply:
5. 1 Application is of an injunction.
5. 2 A prima facie must be established.
5. 3 The matter before court would be on a matter
of law.
5. 4 The appellants do not reside on the property
5. 5 In response respondent in person stated
he sold the land.
5. 6 The appellant prays for the right to be heard.
6. Held:
Application granted 28th September 2011
as prayed.
7. Case Law:
8. Advocates:
i)R. Mutiso instructed by M/s R.M. Mutiso & Co Advocates for appellant/applicant
ii)L S Opundo instructed by Opundo & Co Advocates for respondent/ original plaintiff