[2019] KEELC 2120 (KLR)
The court found that although the defendant failed to pay the thrown away costs within the time set by the court, he demonstrated willingness to comply by expressing readiness to pay both the previous and current application costs. The court considered the defendant's long-term possession of the disputed land and...
Source-derived case information.
- Citation
- [2019] KEELC 2120 (KLR)
- Parties
- Plaintiff: Jacob Waweru Kiarie; Defendant: Charles Kipchumba Biwott Kiputia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 203 of 2016
- Procedural Posture
- Stay Application / Ruling on Application to Set Aside Judgment and for Stay of Execution
- Outcome
- Application allowed conditionally.
- Judges
- A Ombwayo
- Legal Topics
- Setting Aside Judgment, Stay of Execution, Costs Awards, Land Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Waweru Kiarie
Plaintiff
Charles Kipchumba Biwott Kiputia
Defendant
Procedural Posture
Stay Application / Ruling on Application to Set Aside Judgment and for Stay of Execution
Legal Issues
- 1 Whether the judgment delivered on 7th December, 2016 should be set aside.
- 2 Whether the defendant should be granted a stay of execution of the court's orders.
- 3 Whether the defendant should be allowed to pay the thrown away costs outside the time limit set by the court.
Ratio Decidendi
The court found that although the defendant failed to pay the thrown away costs within the time set by the court, he demonstrated willingness to comply by expressing readiness to pay both the previous and current application costs. The court considered the defendant's long-term possession of the disputed land and the relatively minor amount of costs compared to the land's value. Balancing these factors, the court exercised its discretion to allow the application to set aside the judgment and grant a stay of execution, conditional upon payment of the total costs of Kshs.40,000 within five days. Failure to comply would result in automatic dismissal of the application.
Court Disposition
Application allowed conditionally.
Orders
- The application to set aside the judgment and for stay of execution is allowed on condition that the applicant pays the respondent's previous costs of Kshs.30,000 and costs of this application of Kshs.10,000, totaling Kshs.40,000, within the next 5 days.
- Failure to pay the total costs within 5 days will result in automatic dismissal of the application.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT ELDORET
E & L CASE NO. 203 OF 2016
JACOB WAWERU KIARIE.................................................PLAINTIFF
VERSUS
CHARLES KIPCHUMBA BIWOTT KIPUTIA..............DEFENDANT
RULING
Application before me is dated 13th May, 2019 wherein the defendant prays for orders that the Judgment delivered on 7th December, 2016 be set aside. That there be stay of execution of orders of this court and the applicant be allowed to pay costs of Kshs.30,000.
The application is grounded on facts that the applicant was given conditional orders on 9th April, 2019. The applicant filed its defence, witness statement and list of documents but was unable to pay thrown away costs of Kshs.30,000 within time.
The applicant is ready, able and willing to pay the thrown away costs albeit outside the time limit set by court. The applicant has lived on the land for 52 years.
I have considered the application and do find that the land in dispute is 3. 64 Ha. The value of the land far much surpasses the costs ordered to be paid to the respondent. The applicant cannot say that he lacks resources and yet he is in possession of 3. 64 Ha. Court orders are to be obeyed by all and sundry.
However, in the circumstances of this case that the defendant is in possession and in view of the fact that the applicant is willing to pay the plaintiffs costs of the application, the application is allowed on condition that the applicant pays the respondents previous costs of Kshs.30,000 as ordered by court and costs of this application of Kshs.10,000, all amounting to Kshs.40,000 within the next 5 days failure of which the application stands dismissed. Orders accordingly.
Dated and delivered at Eldoret this 23rd day of July, 2019.
A. OMBWAYO
JUDGE