[2013] KEHC 368 (KLR)
The court found that the applicant satisfied all the requirements for the grant of preservatory orders pending appeal. The application was filed without unreasonable delay, the applicant demonstrated that he would suffer substantial loss if the orders were not granted, and he offered adequate security by proposing...
Source-derived case information.
- Citation
- [2013] KEHC 368 (KLR)
- Parties
- Appellant: James Ngari Muchiri; Respondent: Morris Mutero Kimotho; Respondent: Wilson Njagi Muthiru
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 316 of 2013
- Procedural Posture
- Civil Appeal / Interlocutory Application for Preservatory Orders Pending Appeal
- Outcome
- application allowed
- Judges
- BN Olao
- Legal Topics
- Stay of Execution, Preservatory Orders, Security for Due Performance, Substantial Loss, Registration of Land, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Ngari Muchiri
Appellant
Morris Mutero Kimotho
Respondent
Wilson Njagi Muthiru
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Preservatory Orders Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of preservatory orders pending appeal.
- 2 Whether the applicant will suffer substantial loss if the orders are not granted.
- 3 Whether the application was made without unreasonable delay.
Ratio Decidendi
The court found that the applicant satisfied all the requirements for the grant of preservatory orders pending appeal. The application was filed without unreasonable delay, the applicant demonstrated that he would suffer substantial loss if the orders were not granted, and he offered adequate security by proposing to deposit the title to the relevant parcel of land. The court was satisfied that the interests of justice required the preservation of the status quo pending the determination of the appeal, and thus granted the orders sought, subject to the deposit of the title deed as security.
Court Disposition
application allowed
Orders
- Preservatory orders issued preventing registration of transfer, charge or lease on land parcels NGARIAMA/NGIRIAMBU/4014 and NGARIAMA/NGIRIAMBU/4013 until determination of the appeal.
- Applicant to deposit the title to parcel No. NGARIAMA/NGIRIAMBU/4014 with the Deputy Registrar within seven days of the ruling.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
CIVIL APPEAL NO. 316 OF 2013
JAMES NGARI MUCHIRI .......................................................APPELLANT
VERSUS
MORRIS MUTERO KIMOTHO ...................................1ST RESPONDENT
WILSON NJAGI MUTHIRU ........................................2ND RESPONDENT
RULING
(BEING AN APPEAL FROM JUDGMENT OF THE LEARNED CHIEF MAGISTRATE ( HON. J. NG’ENO) DATED 11TH JULY, 2013 IN KERUGOYA S.P.M.C.C NO. 71 OF 2010)
This is in relation to the appellant/applicant’s Notice of Motion dated 29th July 2013 and filed herein on the same day seeking that preservatory orders be issued preventing any registration of transfer, charge or lease on land parcel No. NGARIAMA/NGIRIAMBU/4014 and NGARIAMA/NGIRIAMBU/4013 until the appeal herein is determined. The application is brought under Order 42 Rule 6(1) (6) of the Civil Procedure RulesandSection 68 of the Land Registration Act and is supported by the appellant/applicant’s affidavit sworn on the same day.
The application is opposed and the 2nd respondent has filed grounds of opposition to the same while the 1st respondent has filed a replying affidavit.
An application under Order 42 Rule 6 of the Civil Procedure Rules will only be granted where:-
The applicant satisfies the Court that substantial loss may result if the order sought is not granted
The application has been made without un-reasonable delay and
Such security as the Court may order for the due performance of such decree or order as may ultimately be binding on the applicant has been given.
Submissions have been filed by both parites and I have considered the same.
The ruling sought to be appealed from was delivered on 11th July 2013 and this application was filed on 29th July 2013. Therefore there has been no un-reasonable delay on the part of the applicant.
The applicant has deponed in his supporting affidavit that he will suffer substantial loss as he would be rendered destitute having sold his other land. I am satisfied from the circumstances of this case that the applicant has indeed demonstrated that he stands to suffer substantial loss if this application is not granted.
On the issue of security, the applicant has offered to deposit in Court any security including the title to parcel No. NGARIAMA/NGIRIAMBU/4014. The adequacy of this security has not been questioned and in the circumstances, the applicant has satisfied me that he is deserving of the orders sought in the application dated 29th July 2013. Let the security offered being title to parcel of land No. NGARIAMA/NGIRIAMBU/4014 be deposited with the Deputy Registrar within seven (7) days of this ruling.
B.N. OLAO
JUDGE
3RD DECEMBER, 2013
3/12/2013
Coram
B.N. Olao – Judge
CC – Muriithi
Ms Wangechi for Appellant - present
Ms Kiragu for 1st Respondent – present
Mr. Mugambi for 2nd Respondent – present
COURT: Ruling delivered in open Court this 3rd day of December 2013.
B.N. OLAO
JUDGE
3RD DECEMBER, 2013