[2005] KEHC 2186 (KLR)
The court held that the subsisting order of stay of execution prevents the respondent from obtaining possession of the suit land or subdividing it until the appeal is heard and determined. Granting possession or other substantive orders at this stage would defeat the purpose of the stay, which the respondent has not...
Source-derived case information.
- Citation
- [2005] KEHC 2186 (KLR)
- Parties
- Appellant: James Mwai; Respondent: Wangu Njagi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 50 of 2001
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Applications Pending Appeal
- Outcome
- applications dismissed with costs to the appellant
- Judges
- I Lenaola
- Legal Topics
- Stay of Execution, Possession Orders, Contempt of Court, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwai
Appellant
Wangu Njagi
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Applications Pending Appeal
Legal Issues
- 1 Whether the respondent is entitled to possession of the suit land pending determination of the appeal.
- 2 Whether the respondent can obtain orders for security and declarations of contempt against the appellant during the pendency of a stay order.
- 3 Whether the appeal should be dismissed for want of prosecution.
Ratio Decidendi
The court held that the subsisting order of stay of execution prevents the respondent from obtaining possession of the suit land or subdividing it until the appeal is heard and determined. Granting possession or other substantive orders at this stage would defeat the purpose of the stay, which the respondent has not sought to vacate. The court further found that declarations regarding the appellant's conduct and orders for security cannot be granted on interlocutory applications in the circumstances. The application to dismiss the appeal for want of prosecution was also rejected as the appeal had already been set down for hearing, demonstrating intent to prosecute. The applications were...
Court Disposition
applications dismissed with costs to the appellant
Orders
- The applications dated 1.12.2005 and 13.1.2005 are dismissed with costs to the appellant.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL NO. 50 OF 2001
JAMES MWAI……..………………………….. APPELLANT
VERSUS
WANGU NJAGI ………………………………RESPONDENT
RULING
1. The Appeal herein was filed on 23. 10. 2002 by James Mwai against Wangu Njagi and the same has been fixed for hearing on 14. 2.2005.
2. The Respondent has filed two Applications. In the first, dated 1. 2.2004, she seeks various Orders but specifically;
(i) an Order that she be granted possession of title No. Inoi/Mbeti/731
(ii) an Order that the Appellant and other named persons be ordered to deliver vacant possession of that piece of land
(iii) a declaration that the conduct of the Appellant is scandalous
(iv) an Order that the Appeal be dismissed for want of prosecution.
3. In the second, dated 13. 1.2005 she seeks Orders
(a) that the O.C.S. Kerugoya Police Station or District Officer, Ndia, do provide her with security to re-enter the suit premises.
(b) that a declaration be issued to the effect that the conduct of the Appellant and others named constitutes contempt of Court.
4. The genesis of the matter is that the Lower Court in PM SUCC. Cause No. 146/99 made certain Orders adverse to the Appellant and granted the Respondent and another, 1. 5 acres jointly out of title No. Inoi/Mbeti/182
5. The Appellant, on 7/11/2001 obtained Orders of stay of execution of that Order until the Appeal is heard and determined (Mitei, J.).
6. The Respondent who argued her Application in person and passionately so, stated that all that she wants is to use the land as the Appellant is doing. Further, that she had sent a surveyor to sub-divide the land in terms of the Lower Court’s Order but the Appellant chased him away.
7. Mr. Njage opposed the Applications and stated that the Respondent wants to have possession inspite of a Stay Order and sub-divide the land inspite of an inhibition against the title. He argued that all the prayers were premature and would dispose of the Appeal if granted.
8. I have carefully read the record in this matter and sadly for the Respondent I would agree with Mr. Njage. The essence of the Order of Stay is that she would not have the 1. 5 acres hived off to her and since she was not previously in possession, she would not now be in possession until the Appeal is heard and determined. To grant the Order of possession would defeat the Stay Order which she has not sought to vacate. The declaration she seeks cannot be granted on an interlocutory Application such as the one before me (see Mureithi vs- A.G (NO. 2) [1986] KLR 772)
9. I cannot also dismiss the appeal for want of prosecution because the Appeal has long been listed for hearing and therefore there is an intent of prosecution. Neither can the Orders sought for security be granted in the nature sought by the Respondent.
10. The answer to the Respondent’s predicament lies in the finalisation of the Appeal herein.
11. In the event then, I have no basis for granting the Orders sought and shall dismiss the Application dated 1. 12. 2005 and 13. 1.2005 with costs thereto payable to the Appellant.
Orders accordingly.
Read in open Court this 11th day of February 2005
I. LENAOLA
JUDGE
In the Presence of;
Appellant/Respondent
Respondent/Applicant
I. LENAOLA
JUDGE