[2019] KEHC 3378 (KLR)
The court found that the applicants had satisfied the requirements for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. The court was persuaded that the applicants would suffer substantial loss if the stay was not granted, as the respondent could deal with the suit land in a...
Source-derived case information.
- Citation
- [2019] KEHC 3378 (KLR)
- Parties
- Applicant: Esther Gathoni Kamau & Others; Respondent: Evans Kamau Mwaura
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 260 of 2006
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application allowed
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Succession Estate Management, Pending Appeal, Substantial Loss, Representation of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Gathoni Kamau & Others
Applicant
Evans Kamau Mwaura
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether the respondent will suffer prejudice if stay is granted.
- 3 Whether the applicants will suffer substantial loss if stay is refused.
Ratio Decidendi
The court found that the applicants had satisfied the requirements for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. The court was persuaded that the applicants would suffer substantial loss if the stay was not granted, as the respondent could deal with the suit land in a manner that would render the intended appeal nugatory. The court also noted that the respondent was already in occupation of the land and would not suffer prejudice from the stay. The court dismissed the respondent's objection regarding the applicants' advocates, holding that the change of advocates after judgment was proper. Consequently, the court allowed the application for stay...
Court Disposition
application allowed
Orders
- There shall be stay of execution of the judgment of this court dated 2nd April, 2019 pending the hearing and determination of the intended appeal.
- The respondent shall have the costs of this application.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
SUCCESSION CAUSE NO. 260 OF 2006
IN THE MATTER OF THE ESTATE OF THE LATE EVANS KAMAU MWAURA- (DECEASED)
ESTHER GATHONI KAMAU & OTHERS.....APPLICANTS
VERSES
EVANS KAMAU MWAURA............................RESPONDENT
RULING
1. The application by the Applicants dated 11th April, 2019 seeks orders that there be stay of the judgment of this court delivered on the 2nd day of April, 2019 pending the hearing and determination of the intended appeal to the Court of Appeal. The same is supported by the joint sworn affidavit of the Applicants.
2. They have essentially deponed that they stand to suffer loss if the stay is not granted as the Respondent may utilise the land and or deal with it so adversely that the appeal may be rendered nugatory.
3. The Respondent vide the replying affidavit sworn on the 9th May, 2019 has opposed the same arguing that he should be left to enjoy the fruit of the judgment and that this matter has taken a long time in litigation. He said that the Applicants in any case have not been in occupation of the suit land and they stand to suffer no loss. He urged the court to dismiss the same.
4. The court has perused the application as well as the written submissions on record which it does not intend to reproduce the same.
5. It is generally clear that the provisions of Order 42 (6) of the Civil Procedure apply namely, if there shall be substantial loss to be suffered if the application is disallowed, and that the same has been made without much delay.
6. Having heard this matter from the beginning and the evidence on board and the history with which it has gone through, I find that the application without doubt is meritorious. The court does not see any suffering by the Respondent since he has been in occupation of the suit land a fact admitted on record by the Respondent.
7. The question whether the appeal is meritorious is not for this court to determine as it has already rendered its verdict. It is therefore necessary that the matter is escalated upwards which I hereby allow.
8. There was the submission by the Respondent that the firm of Rutto & Kirui Advocates were not properly on record since they did not comply with the provisions of Order 9 rules 13 of the Civil Procedure Rules. I do not think this is true as the firm of Khaosa & Co. ceased acting for the Respondent after the judgment of this court was delivered and thus the Respondent had the right of seeking legal services elsewhere.
9. For the foregoing reasons, the application dated 11th April, 2019 is hereby allowed. There shall be stay of execution of the judgement of this court dated 2nd April, 2019 pending the hearing and the determination of the intended appeal.
10. The Respondent shall have the costs of this application.
Dated signed and delivered in open court at Kitale this 23rd day of July, 2019.
__________________
H K CHEMITEI
JUDGE
23/7/19
In the presence of;-
Oluoch holding brief for Njagua for the Applicant
None Appearence for the Respodnent
Court Assistant -Kirong
Ruling read in open court.