[2012] KEHC 3946 (KLR)
The court found that the application for stay was brought without unreasonable delay, as it was filed approximately one month after judgment and within the 30-day period granted for vacating the property. The applicants demonstrated that they would suffer substantial loss if evicted before their appeal is...
Source-derived case information.
- Citation
- [2012] KEHC 3946 (KLR)
- Parties
- Plaintiff: John K. Lokorio; Defendant: Leonard Wanyama; Defendant: Absolom Ndole; Defendant: Patrick Kimungichi; Defendant: John Eila Omuga; Defendant: Ekiru Etak; Defendant: Samson Omuga; Defendant: Moses Ole Muya; Defendant: Mutialieni John; Defendant: Peter Erekabo; Applicant: Edung Ekale & 133 Others
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 19 of 2006
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted pending appeal. No order as to security. Costs to be in the appeal.
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Due Performance, Eviction Orders, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John K. Lokorio
Plaintiff
Leonard Wanyama
Defendant
Absolom Ndole
Defendant
Patrick Kimungichi
Defendant
John Eila Omuga
Defendant
Ekiru Etak
Defendant
Samson Omuga
Defendant
Moses Ole Muya
Defendant
Mutialieni John
Defendant
Peter Erekabo
Defendant
Edung Ekale & 133 Others
Applicant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the eviction orders pending appeal.
- 2 Whether substantial loss will result to the applicants if stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that the application for stay was brought without unreasonable delay, as it was filed approximately one month after judgment and within the 30-day period granted for vacating the property. The applicants demonstrated that they would suffer substantial loss if evicted before their appeal is determined, particularly given their long occupation, the presence of crops, and children in school. The court balanced the applicants' right to appeal against the respondent's judgment and concluded that justice would best be served by granting a stay of execution. The court also considered the applicants' status and declined to order security, finding such a requirement would be...
Court Disposition
Stay of execution granted pending appeal. No order as to security. Costs to be in the appeal.
Orders
- An order of stay of execution in terms of paragraph 3 of the motion dated 8th November, 2011 is granted.
- No security for due performance is required from the applicants.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
Civil Case 19 of 2006
JOHN K. LOKORIO…….………………………………………………..PLAINTIFF
VERSUS
LEONARD WANYAMA .. …………………………………….....1ST DEFENDANT
ABSOLOM NDOLE…………………………………………….2ND DEFENDANT
PATRICK KIMUNGICHI………………………………………...3RD DEFENDANT
JOHN EILA OMUGA………………………………………..…..4TH DEFENDANT
EKIRU ETAK…………………………………………………….5TH DEFENDANT
SAMSON OMUGA……………………………………………...6TH DEFENDANT
MOSES OLE MUYA……………………………………………7TH DEFENDANT
MUTIALIENI JOHN…….……………………………………….8TH DEFENDANT
PETER EREKABO...….………………………………………...9TH DEFENDANT
AND
EDUNG EKALE & 133 OTHERS…..…………………..INTERESTED PARTIES
RULING
The applicants who have maintained that they have been in occupation of the suit land since 1995 were ordered, by this court in a judgment delivered on 30th September, 2011, to vacate it within 30 days from that date.
They have now moved the court to stay execution of those orders pending the hearing and determination of the appeal to the Court of Appeal. The applicants contend that they were aggrieved by the judgment herein and have filed a notice of appeal to challenge it. In the meantime, they are apprehensive that the respondent may execute after the 30 days granted to the applicants to vacate.
In reply, learned counsel for the respondent and an auctioneer (John Muthee Ngunjiri) have sworn an affidavit to the effect that the applicants were evicted from the suit property on 5th November, 2011 and their settlements destroyed. The applicants through the 2nd applicant have denied this fact maintaining that an attempt to evict them was thwarted and are still in occupation of the suit property.
An order of stay will be granted if the court is satisfied that substantial loss may result to the applicants unless the order is made and the application for stay has been made without unreasonable delay. The applicants must also be ready to furnish security as may be ordered.
No doubt this application was brought timeously, approximately 1 month from the date of the judgment and bearing in mind that the applicants had 30 days to vacate.
Regarding substantial loss, the applicants have maintained that they have filed a notice of appeal to challenge their eviction and the entire judgment of this court. They have also deposed that they have crops on the land and children in school. If evicted, they have averred, they will suffer substantial loss, particularly if their appeal was to be allowed.
Balancing the applicants’ right to appeal and the judgment in favour of the respondent, it is my considered view that justice will best be served by granting a stay to the applicants.
The applicants have been on the suit property for sometime.
From the respondent’s application dated 21st December, 2011, it is apparent that the applicants are still on the suit property. They have no means of disposing of the property as the title is with the respondent.
For those reasons, I will grant an order of stay of execution in terms of paragraph 3 of the motion dated 8th November, 2011.
The court is alive to the status of the applicants and is of the view that asking them to furnish security would be punitive. I decline to order security.
Costs to be costs in the appeal. Orders accordingly.
Dated, Signed and Delivered at Nakuru this 2nd day of May, 2012.
W. OUKO
JUDGE