[2018] KEELC 963 (KLR)
The court found that the applicant was facing imminent eviction pursuant to the lower court's judgment, which required him to vacate the suit land within 90 days. The application for stay of execution and injunction was unopposed, and the applicant had demonstrated that he would suffer irreparable loss if the orders...
Source-derived case information.
- Citation
- [2018] KEELC 963 (KLR)
- Parties
- Appellant: John Guantai; Respondent: Joseph Kaburu Kiara
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 23 of 2018
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay and Injunction Pending Appeal
- Outcome
- Application for stay of execution and injunction granted.
- Legal Topics
- Stay of Execution, Injunctions, Eviction Proceedings, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Guantai
Appellant
Joseph Kaburu Kiara
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay and Injunction Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the lower court's judgment pending appeal.
- 2 Whether an injunction restraining the respondent from evicting or interfering with the applicant's occupation of the suit land should be granted.
Ratio Decidendi
The court found that the applicant was facing imminent eviction pursuant to the lower court's judgment, which required him to vacate the suit land within 90 days. The application for stay of execution and injunction was unopposed, and the applicant had demonstrated that he would suffer irreparable loss if the orders were not granted. The court was satisfied that the conditions for granting a stay and an injunction had been met, and therefore granted both orders as prayed, to remain in force for eight months pending the determination of the appeal.
Court Disposition
Application for stay of execution and injunction granted.
Orders
- Stay of execution of the judgment of Hon S. Abuya delivered on 27.6.2018 and all consequential orders issued therein is granted pending the hearing and determination of the appeal, for a period of eight months.
- An injunction restraining the respondent, his agents, servants, employees or anyone acting on his behalf from evicting the applicant, destroying or demolishing his houses or structures, selling, transferring or in any other way interfering with the applicant’s use and occupation of land parcel L.R No. Timau...
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC APPEAL NO. 23 OF 2018
JOHN GUANTAI...................................................................PLAINTIFF
VERSUS
JOSEPH KABURU KIARA.............................................DEFENDANT
RULING
1. An appeal has been filed herein against the Judgment of Hon S. Abuya delivered on 27. 6.2018. The appellant/Applicant has also filed an application on 2. 10. 2018 seeking for an order of stay of execution of the aforementioned judgment and all other consequential orders issued therein pending the hearing and determination of the application and the appeal.
2. The applicant is further seeking for orders of injunction restraining the respondent by himself, his agents, servants, employees or anyone acting on his behalf from evicting the applicant, destroying/demolishing his houses/structures, selling, transferring or in any other way interfering with the applicant’s use and occupation of land parcel L.R No. Timau Settlement Scheme/1279 pending the hearing and determination of this application and the main appeal herein. Applicant is also seeking for costs of the application.
3. The grounds in support of the application are that the applicant stands to be evicted within 90 days from 25th July 2018 or soon thereafter in enforcement of the lower court’s Judgment. Applicant avers that the appeal will be rendered nugatory, occasioning him irreparable loss if the orders sought for are not granted.
4. Applicant has also filed an affidavit in support of the application where he has availed annexures including the judgment from the lower court.
5. The application was served but no response was filed. The application is hence unopposed. I find that indeed the Judgment of the lower court was to the effect that applicant was to vacate the suit land within 90 days from the date of judgment. He is therefore facing eviction. I therefore grant the orders of stay of execution as well as the order of injunction as prayed in point 2 and 3 of the application with a rider that such orders will remain in force for a period of 8 (eight) months.
6. The costs of this application will abide the outcome of the appeal.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 8TH NOVEMBER, 2018 IN THE PRESENCE OF:-
C/A: Janet
Ashaba for applicant
HON. LUCY. N. MBUGUA
ELC JUDGE