[2018] KEELC 2710 (KLR)
The court found that the applicant had demonstrated sufficient grounds for the grant of a stay of execution, subject to the deposit of security for due performance of the decree. The court also considered the respondent's request for time to respond as reasonable and granted the same. The stay of execution was made...
Source-derived case information.
- Citation
- [2018] KEELC 2710 (KLR)
- Parties
- Applicant: Jackson Kamau Nthiga (Legal Representative of Nthiga Matumo); Respondent: Humprey Kirimi Mbuba
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 05 of 2018
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Application for Stay of Execution and Extension of Time to Appeal
- Outcome
- interlocutory orders granted; stay of execution issued conditionally; extension of time to respond granted
- Judges
- FM Njoroge
- Legal Topics
- Extension of Time to Appeal, Stay of Execution, Security for Due Performance, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Kamau Nthiga (Legal Representative of Nthiga Matumo)
Applicant
Humprey Kirimi Mbuba
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Application for Stay of Execution and Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to appeal against the judgment in Chuka CMCC No. 16 of 2004.
- 2 Whether a stay of execution of the judgment decree should be granted pending hearing of the application.
- 3 Whether security for due performance should be ordered as a condition for stay.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient grounds for the grant of a stay of execution, subject to the deposit of security for due performance of the decree. The court also considered the respondent's request for time to respond as reasonable and granted the same. The stay of execution was made conditional upon the applicant depositing Kshs. 400,000 in court within 14 days, failing which the stay would lapse automatically. The court exercised its discretion to balance the interests of both parties, ensuring that the respondent's right to enjoy the fruits of judgment is protected by the security, while also preserving the applicant's right to appeal.
Court Disposition
interlocutory orders granted; stay of execution issued conditionally; extension of time to respond granted
Orders
- An order of stay of execution of the judgment decree in Chuka CMCC No. 16 of 2004 is issued pending the hearing of this application subject to the applicant depositing in court, within 14 days, a sum of Kshs. 400,000, failing which the order of stay will automatically lapse.
- The respondent is granted 14 days to respond to the application.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA MISCELLANEOUS ELC CASE NO. 05 OF 2018
JACKSON KAMAU NTHIGA (LEGAL REPRESENTATIVE OF
NTHIGA MATUMO).......................................................APPLICANT
VERSUS
HUMPREY KIRIMI MBUBA...................................RESPONDENT
RULING
1. This application is dated 30th June, 2018 and seeks orders:
a. That this application be certified urgent.
b.That this honourable court be pleased to extend time for the applicant to appeal against the judgment of the Chief Magistrate in Chuka CMCC No. 16 of 2004.
c.That pending the hearing of this application there be stay of execution of the judgment decree in Chuka CMCC No. 16 of 2004.
d. That the costs of this application be provided.
2. It has the following grounds:
i) The applicant has a good appeal but the proceedings and judgment have taken time to be supplied.
ii) That a copy of the judgment which has not been proof read is what was ready.
iii) That the judgment did not consider legal issues which favour the applicant.
iv) That the plaintiff may proceed with execution as the applicant waits for the proceedings and judgment.
3. When the matter came up for interpartes hearing on 10th July, 2018, Mr. Mark Muriithi, for the respondent, asked the court to grant him 14 days to file his response. This prayer was found reasonable by the court.
4. Regarding prayer C for a stay of execution of judgment, the applicant will be required to deposit security for due performance of the decree that will result from the impugned judgment.
5. It is ordered as follows:
(i) An order of stay of execution of the judgment decree in Chuka CMCC No. 16 of 2004 is issued pending the hearing of this application subject to the applicant depositing in court, within 14 days, a sum of Kshs. Four Hundred Thousand (Kshs.400,000/=) failing which the order of stay granted herein will automatically lapse.
(ii) The respondent is granted 14 days to respond to the application.
(iii)Parties are directed to come to court for interpartes hearing on 30th July, 2018.
(iv) Costs shall be in the cause.
6. It is so ordered.
Delivered in open court at Chuka this 10th day of July, 2018 in the presence of:
CA: Ndegwa
Charles Muchiri for the Applicant
Mark Muriithi for the Respondent
P.M. NJOROGE
JUDGE