[2022] KEELC 1147 (KLR)
The court found that the application for stay of execution and injunction was filed after an inordinate delay, as judgment was delivered on 22nd July 2021 and the application was filed on 14th October 2021. The court noted that although the applicants claimed delay in obtaining proceedings, the certificate of delay...
Source-derived case information.
- Citation
- [2022] KEELC 1147 (KLR)
- Parties
- Plaintiff: Jane Njeri Kibuthia; Plaintiff: Gladys Njambi Kabi; Plaintiff: Elizabeth Thaba Karura; Plaintiff: Agnes Wairimu Karanja; Plaintiff: Rebecca Wanjiru Kariuki; Defendant: Penninah Wambui Kinuthia; Defendant: Milka Mwaura; Defendant: Miriam Wanja Mwaura; Defendant: Pauline Wangui Kariuki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 594 of 2010
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution and Injunction Pending Appeal
- Outcome
- application dismissed
- Judges
- LC Komingoi
- Legal Topics
- Stay of Execution, Injunctions, Appeal Process, Delay in Filing, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Njeri Kibuthia
Plaintiff
Gladys Njambi Kabi
Plaintiff
Elizabeth Thaba Karura
Plaintiff
Agnes Wairimu Karanja
Plaintiff
Rebecca Wanjiru Kariuki
Plaintiff
Penninah Wambui Kinuthia
Defendant
Milka Mwaura
Defendant
Miriam Wanja Mwaura
Defendant
Pauline Wangui Kariuki
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution and Injunction Pending Appeal
Legal Issues
- 1 Whether the defendants/applicants are entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the defendants/applicants are entitled to an injunction restraining the plaintiffs from dealing with the suit property pending appeal.
- 3 Whether the application was filed without undue delay and in compliance with procedural requirements.
Ratio Decidendi
The court found that the application for stay of execution and injunction was filed after an inordinate delay, as judgment was delivered on 22nd July 2021 and the application was filed on 14th October 2021. The court noted that although the applicants claimed delay in obtaining proceedings, the certificate of delay indicated that proceedings were ready by 28th October 2021. Furthermore, no memorandum of appeal had been filed in the Court of Appeal as of the date of the ruling. The court held that the applicants ought to pursue stay orders in the Court of Appeal rather than before this court. Consequently, the application lacked merit and was dismissed with no order as to costs.
Court Disposition
application dismissed
Orders
- The application for stay of execution and injunction is dismissed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. 594 OF 2010
JANE NJERI KIBUTHIA......................................................................1ST PLAINTIFF
GLADYS NJAMBI KABI.....................................................................2ND PLAINTIFF
ELIZABETH THABA KARURA........................................................3RD PLAINTIFF
AGNES WAIRIMU KARANJA...........................................................4TH PLAINTIFF
REBECCA WANJIRU KARIUKI.......................................................5TH PLAINTIFF
=VERSUS=
PENNINAH WAMBUI KINUTHIA.................................................1ST DEFENDANT
MILKA MWAURA............................................................................2ND DEFENDANT
MIRIAM WANJA MWAURA..........................................................3RD DEFENDANT
PAULINE WANGUI KARIUKI.......................................................4TH DEFENDANT
RULING
1. Judgment in this matter was delivered on 22nd July 2017. Upon delivery of the said judgment this court on its own motion granted a stay of execution of forty-five (45) days.
2. The Defendants/Applicants have filed this notice of motion dated 14th October 2021 brought under Order 42 Rule 6(1), (2), Order 51 rule 1, of the Civil Procedure Rules 2010 and Section 1A, 1B and 3A of the Civil Procedure Act, and all other enabling provisions of the law.
3. It seeks order:-
1. Spent.
2. Spent.
3. That this honourable court be pleased to stay the execution of the judgment of this honourable court delivered on the 22nd July 2021 herein pending the hearing and final determination of the Applicants’ appeal;
4. That in addition to the Order of stay of execution, this honourable court be pleased to issue an order of injunction restraining the Plaintiffs from transferring by way of sale, charging, leasing or otherwise disposing off any interest in the suit property Titles Number Githunguri/Kimathi/966 pending the hearing and final determination of the Appeal filed by the 1st and 4th Defendants.
5. That the costs of this application be provided for.
4. The grounds are on the face of the application and are set out in paragraphs (a) to (g).
5. The application is supported by the affidavit of Stephen Kinuthia Ndichu, the 1st Defendant/Applicant sworn on the 14th October 2021.
6. Mr. Mwangi for the 1st and 4th Defendants/Applicants told the court that he had served the application on the firm of M/S P. K. Njoroge and Company. I have gone through the affidavits of service sworn on the 26th November 2021 and 23rd February 2011. It appears the said firm was served. However, they have not filed any response to the application.
7. This notwithstanding, as stated earlier Judgment was delivered on 22nd July 2021. This application was field on 14th October 2021. I find that the application has been filed after an inordinate delay.
8. In paragraph 5 of the supporting affidavit the 1st Defendant/Applicant depones:-
“That my advocates further requested for certified copies of proceedings and Decree vide their letters dated 28th July 2021 and to date they have only received the Decree but the typed proceedings have never been supplied to them despite their follow up in the Registry. Attached hereto and marked ‘SKN3’ are copies of the letters requesting for the decree and certified copies of the proceedings and their filing receipts”.
9. I have gone through the court file there is a certificate of delay by the Deputy Registrar confirming that the proceedings were ready by 28th October 2021.
10. To date no memorandum of appeal has been filed in the Court of Appeal.
11. The Defendants/Applicants ought to pursue the orders of stay in the Court of Appeal.
12. For the foregoing reasons, I find no merit in this application and the same is dismissed with no orders as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED NAIROBITHIS 2ND DAY OF MARCH 2022.
............................
L. KOMINGOI
JUDGE
In the presence of:-
No appearance for the Plaintiffs
Mr. Mwangi for the 1st and 4th Defendants
Steve - Court Assistant