[2022] KEELC 2017 (KLR)
The court found that the applicant had demonstrated sufficient grounds for the grant of a conditional stay of execution pending appeal. The court exercised its discretion to grant a stay, subject to the applicant depositing Kshs. 400,000 as security within 20 days. The court considered the risk of substantial loss...
Source-derived case information.
- Citation
- [2022] KEELC 2017 (KLR)
- Parties
- Appellant: Jesse Mutiga Laibuni; Respondent: Jane Thairora; Respondent: Hellen Mukiri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Isiolo
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E002 of 2021
- Procedural Posture
- Stay Application / Interlocutory Application for Stay Pending Appeal
- Outcome
- Conditional stay of execution granted pending appeal, subject to deposit of security.
- Legal Topics
- Stay of Execution, Interlocutory Injunctions, Appeals From Subordinate Courts, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jesse Mutiga Laibuni
Appellant
Jane Thairora
Respondent
Hellen Mukiri
Respondent
Procedural Posture
Stay Application / Interlocutory Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant has established grounds for grant of stay of execution pending appeal.
- 2 Whether the applicant will suffer substantial loss if stay is not granted.
- 3 Whether the respondents will suffer prejudice if stay is granted.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient grounds for the grant of a conditional stay of execution pending appeal. The court exercised its discretion to grant a stay, subject to the applicant depositing Kshs. 400,000 as security within 20 days. The court considered the risk of substantial loss to the applicant if execution proceeded before the appeal was heard, and found that the respondents would not suffer prejudice that could not be compensated by security. The orders were made to preserve the subject matter of the appeal and ensure fairness to both parties pending the determination of the appeal.
Court Disposition
Conditional stay of execution granted pending appeal, subject to deposit of security.
Orders
- Conditional stay of execution of the judgment in Isiolo Chief Magistrates Court ELC Case No. 14 of 2017 is granted in terms of prayer 2, subject to the applicant depositing Kshs. 400,000 with court within 20 days.
- The application to be served upon the respondents within 20 days.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE LAND AND ENVIRONMENT COURT
AT ISIOLO
ELC APPEAL NO. E002 OF 2021
JESSE MUTIGA LAIBUNI.......APPELLANT/APPLICANT
-VERSUS-
JANE THAIRORA...................................1ST RESPONDENT
HELLEN MUKIRI..................................2ND RESPONDENT
RULING
1. This application is dated 16th January, 2022 and seeks the following orders;
1. THAT this application be certified urgent and the same be heard ex-parte in the 1st instance.
2. THAT there be a Stay of Execution of the judgment and decision of Hon. S. M. Mungai Chief Magistrate at Isiolo Chief Magistrates Court ELC Case No. 14 of 2017 delivered on the 8th November 2021 pending the hearing and determination of this application.
3. THAT there be a Stay of Execution of the judgment and decision of Hon. S. M. Mungai Chief Magistrate at Isiolo Chief Magistrates Court ELC Case No. 14 of 2017delivered on the 8th November 2021 pending hearing and determination of this Appeal.
4. THATthe respondent be restrained from evicting, taking possession, using and/or in any way interfering with the ownership of Plot Nos. 1026, 1027 Kambi Ya Juu vis Plot No. 1025 Kambi ya Juu – Isiolo County pending the hearing and determination of this application.
5. THAT the Respondents be restrained from evicting, taking possession using and/or in any way interfering with the ownership of Plot Nos. 1026, 1027 Kambi Ya Juu vis Plot No. 1025 Kambi Ya Juu – Isiolo County pending the hearing and determination of this appeal.
6. THATthe costs of this application be provided for.
2. The application has the following grounds:
a. THAT the Applicant/Appellant has filed an arguable appeal with probability of success against the decision of Hon. S. M Mungai Chief Magistrate at Isiolo Chief Magistrates Court ELC Case No. 14 of 2017 delivered on the 8th November 2021.
b. THAT the Respondents are likely to execute against the Applicant any time pending the hearing and determination of this Appeal.
c. THAT the Applicant is likely to suffer substantial loss if this application is not granted.
d. THAT it is in the interest of justice and fairness that this application be allowed in default of which the applicant stands to suffer irreparably.
e. THAT the Respondent’s will not suffer any prejudice if this application is allowed
3. Having perused the application and the supporting documents, I issued the following orders:
a. Conditional stay of the execution of the apposite Judgment is granted in terms of prayer 2 subject to the applicant depositing with court the sum of Kshs. 400,000/= within 20 days of today FAILING WHICH the conditional stay granted herein will automatically lapse.
b. The application should be properly served upon the respondents within 20 days of today.
c. The application will be heard inter-partes on 14/3/2022.
d. For avoidance of doubt, the applicant should serve the orders issued today upon the respondent within 10 days of today.
DELIVERED IN CHAMBERS AT ISIOLO THIS 24TH DAY OF JANUARY, 2022
IN THE PRESENCE OF:
Court Assistant: Balozi
HON. JUSTICE P.M. NJOROGE
ELC JUDGE, ISIOLO