[2021] KECA 749 (KLR)
The Court found that the question of whether adverse possession was proved is arguable and that if the applicants are evicted before the appeal is heard, the outcome of the appeal would be rendered nugatory. The respondent's assurance that it does not intend to evict the applicants means that granting a stay would...
Source-derived case information.
- Citation
- [2021] KECA 749 (KLR)
- Parties
- Applicant: James Kamau & 42 Others; Respondent: Leonid Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Application E19 of 2020
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal granted.
- Judges
- J Karanja
- Legal Topics
- Adverse Possession, Stay of Execution, Eviction Orders, Title Indefeasibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kamau & 42 Others
Applicant
Leonid Limited
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have met the threshold for grant of stay of execution pending appeal under Rule 5(2)(b) of the Court of Appeal Rules.
- 2 Whether the intended appeal is arguable.
- 3 Whether the applicants will suffer prejudice if stay is not granted.
Ratio Decidendi
The Court found that the question of whether adverse possession was proved is arguable and that if the applicants are evicted before the appeal is heard, the outcome of the appeal would be rendered nugatory. The respondent's assurance that it does not intend to evict the applicants means that granting a stay would not prejudice the respondent. Therefore, the Court exercised its discretion to grant a stay of execution pending the hearing and determination of the intended appeal, subject to the applicants lodging the record of appeal within 30 days.
Court Disposition
Application for stay of execution pending appeal granted.
Orders
- Stay of execution of the judgment and orders of the Environment and Land Court granted pending appeal.
- Applicants to lodge the record of appeal within 30 days, failing which the stay orders will lapse.
Full Case Text
Judgment text and source record
37 paragraphs
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: OUKO, (P), KARANJA & GATEMBU, JJ. A.)
CIVIL APPLICATION NO. E19 OF 2020
BETWEEN
JAMES KAMAU & 42 OTHERS.....................APPLICANTS
AND
LEONID LIMITED..........................................RESPONDENT
(Being an application for injunction relief and stay ofexecution
pending the hearing and determination of an intended
appealarising from the judgment of the Environment and Land
Courtof Kenya at Mombasa (Omollo, J.) dated 16th September,
2020 and delivered on 21st September, 2020 in ELC No. 253 of 2015)
********
RULING OF THE COURT
By a judgment dated 16th September, 2020, Omollo, J. of the Environment and Land Court dismissed the applicants’ claim by adverse possession to parcel of land No. 2380/V/MN, MIRITINI, MOMBASA, reasoning that they had failed to prove on a balance of probabilities their entitlement to it.
On the other hand, the learned Judge allowed the respondent’s counter- claim declaring the respondent’s title over the suit property indefeasible and the applicants’ trespassers. With that, the applicants were ordered to vacate the suit property within ninety (90) days of the date of the judgement, and in default, they would be evicted and their structures on the suit property demolished. The applicants were also condemned to pay costs of the suit and of the counter-claim.
The applicants are desirous of challenging that decision on appeal to this Court, but wish, in the meantime to be protected by an order of stay of execution of those orders pending the lodgement and determination of the intended appeal. In satisfaction of the well- known strictures for the grant of the relief sought under Rule 5(2)(b)of the Court of Appeal Rules, the applicants have urged that the intended appeal is arguable and further, that if an order staying their eviction and demolition of their houses is not granted, the intended appeal will become otiose.
Though the respondent, in its response to the application has assured the applicants that it has no intention of evicting them, for our part, in fulfillment of our duty under the aforesaid rule, we find that the question, whether or not adverse possession was proved, is an arguable issue.
If the respondent has no intention of evicting the applicants, then an order, in form of a stay of execution, confirming that intention would cause no prejudice to the respondent.
However, if they are evicted before the appeal is heard, the outcome, if in favour of the applicants will have no benefit to them. See Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others[2013] eKLR.
Accordingly, we grant the prayers for stay of execution pending appeal. The applicants have 30 days within which to lodge the record of appeal, failing which the orders issued herein will lapse and the respondent will be at liberty to execute the impugned judgment and consequential orders arising therefrom.
Costs will be in the appeal.
DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MARCH, 2021.
W. OUKO, (P)
.......................................
JUDGE OF APPEAL
W. KARANJA
.......................................
JUDGE OF APPEAL
S. GATEMBU KAIRU, (FCIArb)
........................................
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
Signed
DEPUTY REGISTRAR