[2009] KEHC 3130 (KLR)
The court found that while it was not prepared to set aside the orders made on 5th November, 2007, the interests of justice required that a stay of execution be granted pending the hearing and determination of the main suit. The court reasoned that if the defendant's houses were demolished and the plaintiff...
Source-derived case information.
- Citation
- [2009] KEHC 3130 (KLR)
- Parties
- Plaintiff: John Angwenyi; Defendant: Thomas Chacha Chacha
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 122 of 2005
- Procedural Posture
- Civil Suit / Ruling on Application for Review and Stay of Execution
- Outcome
- Stay of execution granted; costs in the cause.
- Legal Topics
- Review of Court Orders, Interlocutory Injunctions, Stay of Execution, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Angwenyi
Plaintiff
Thomas Chacha Chacha
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Review and Stay of Execution
Legal Issues
- 1 Whether there is a mistake or error apparent on the face of the record to warrant review of the orders made on 5th November, 2007.
- 2 Whether the interests of justice require a stay of execution of the injunctive and eviction orders pending the hearing and determination of the suit.
Ratio Decidendi
The court found that while it was not prepared to set aside the orders made on 5th November, 2007, the interests of justice required that a stay of execution be granted pending the hearing and determination of the main suit. The court reasoned that if the defendant's houses were demolished and the plaintiff ultimately failed in his suit, the defendant would suffer considerable harm. Conversely, if the plaintiff succeeded, the defendant could still be evicted at that time. Therefore, a stay of execution was the appropriate remedy to balance the interests of both parties until the substantive issues in the suit were resolved.
Court Disposition
Stay of execution granted; costs in the cause.
Orders
- Stay of execution of the orders made on 5th November, 2007 is granted pending hearing and determination of the suit.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CIVIL SUIT 122 OF 2005
JOHN ANGWENYI………………………………………….PLAINTIF/APPLICANT
VERSUS
THOMAS CHACHA CHACHA………………..….DEFENDANT/RESPONDENT
RULING
The defendant/Applicant seeks a review of orders made on 5th November, 2007. He stated that there is a mistake or error apparent on the face of the record as the main suit was unlawfully and unprocedurally disposed of by way of interlocutory proceedings. In the ruling delivered on the aforesaid date, the court granted injunctive orders to restrain the defendant, his servants and/or agents from trespassing onto land parcel No. BUGUMBE/ MABERA/ 616 until the final determination of this suit. The court further ordered that the defendant, his servants and/ or agents be evicted from the aforesaid parcel of land, hereinafter referred to as “the suit land”. The suit land is registered in the name of the plaintiff. The plaintiff has already obtained an eviction order which was supposed to be executed by the O.C.S. Isebania Police Station. However, Karanja. J, issued a temporary stay of execution on 4th April, 2009. Those orders have been extended pending hearing and determination of this application.
The application was opposed by the plaintiff who filed grounds of opposition. He stated, inter alia, that there is no mistake or error on the record to warrant any review. He further stated that there has been inordinate delay in bringing the application for review.
Mr. Kisera for the defendant/applicant and Mr. Masese for the plaintiff/respondent made brief submissions which I have taken into account. It was stated by Mr. Masese that the defendant is the owner of land parcel No.BUGUMBE/ MABERA/ 615 but he has wrongfully annexed the suit land.
The ruling sought to be reviewed was delivered by my sister, Gacheche,J. She was alive to the fact that by granting the orders she did, a major part of the relief claimed in the suit will have been dealt with.
Prima facie, the plaintiff is the registered owner of the suit land while the defendant is either the registered or beneficial owner of the neighbouring parcel No.615.
The defendant alleges that he purchased the suit land and has filed a caution against the title claiming purchaser’s interest. He has also built homes for his wives on the two parcels of land.
While I am not prepared to set aside the orders made on 5th November, 2007, I think the interests of justice demand that the same be stayed pending hearing and determination of the suit. If the defendant’s houses are demolished from the suit land and the plaintiff fails in his suit, considerable suffering and damage shall have been occasioned to the defendant. If on the other hand the plaintiff succeeds in his suit, the defendant will have to be evicted.
Consequently, I grant stay of execution of the orders made on 5th November, 2007.
The cost of the application shall be in the cause.
Dated, signed and delivered at kisii this 6th day of July, 2009.
D. MUSINGA.
JUDGE