[2019] KEELC 3171 (KLR)
The court found that the appellant, being the son of the respondent, had already been allocated another parcel of land (Abogeta/U-Kiringa/1283) and was not without a place to reside. The respondent, a 97-year-old man, was entitled to peaceful enjoyment of his property, and there was no evidence that he was...
Source-derived case information.
- Citation
- [2019] KEELC 3171 (KLR)
- Parties
- Appellant: Jackson M’Rinyiru Mbui; Respondent: Silas M’Rinyiru Mbui
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 47 of 2019
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Eviction, Ownership of Land, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson M’Rinyiru Mbui
Appellant
Silas M’Rinyiru Mbui
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the judgment in Nkubu PMCC NO. 9 of 2012 pending appeal.
- 2 Whether the appellant will suffer substantial loss if the stay is not granted.
- 3 Whether the respondent, as a 97-year-old registered owner, should be disturbed in possession of the suit land.
Ratio Decidendi
The court found that the appellant, being the son of the respondent, had already been allocated another parcel of land (Abogeta/U-Kiringa/1283) and was not without a place to reside. The respondent, a 97-year-old man, was entitled to peaceful enjoyment of his property, and there was no evidence that he was alienating the suit land. The court exercised its discretion against granting a stay, noting that the appellant would not suffer substantial loss as he had alternative accommodation. The application for stay of execution was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application for stay of execution is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC APPEAL NO. 47 OF 2019
JACKSON M’RINYIRU MBUI.............................APPELLANT
VERSUS
SILAS M’RINYIRU MBUI.................................RESPONDENT
RULING
1. Vide the application dated 25. 3.2019, appellant/applicant is seeking for a stay of execution of the judgment delivered in Nkubu PMCC NO. 9 of 2012 pending appeal herein. Applicant avers that he stands to be evicted if a stay is not granted and he has filed an affidavit on 25. 3.2016 in support of this averment.
2. The respondent has opposed the application vide his replying affidavit filed on 6. 5.2019 where he avers that he is the registered owner of the suit land Abogeta/L-Kiungone/809, which land the appellant had entered without permission of respondent and he had started to damage the property therein and to chase away the respondent’s servants.
3. I have considered all the arguments raised herein. I have also read the judgment delivered in Nkubu PMCC NO. 9 of 2012. It has emerged that appellant is a son of the respondent.
4. The respondent is a 97 years old man. He ought to spend his sunset years in peace. It is not as if the respondent is alienating the suit land. Appellant has apparently been given another piece of land of which he used to utilize but he didn’t want it.
5. This is not a situation where applicant has no options in terms of having a place to call home. He has apparently been given parcel no. Abogeta/U-Kiringa/1283.
6. On account of the advanced age of the respondent, I hesitate to allow the application. The application is dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 22ND MAY, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Kiogora for appellant/applicant
Maitai D for respondent
Applicant
Respondent
HON. LUCY. N. MBUGUA
ELC JUDGE