[1998] KECA 259 (KLR)
The Court of Appeal found that the applicant had not demonstrated sufficient grounds to warrant the exercise of its equitable jurisdiction to grant a stay of execution. The applicant had already been given time to vacate the premises, a consent order had been recorded to that effect, and the substantive appeal had...
Source-derived case information.
- Citation
- [1998] KECA 259 (KLR)
- Parties
- Applicant: John Ndungungethe; Respondent: Patrick Murima Gitau; Respondent: Edward Nganga Kamau; Respondent: Peter Njoroge Ribia
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 175 of 1998
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- AB Shah
- Legal Topics
- Stay of Execution, Eviction Orders, Possession of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Ndungungethe
Applicant
Patrick Murima Gitau
Respondent
Edward Nganga Kamau
Respondent
Peter Njoroge Ribia
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the High Court judgment ordering eviction from the suit premises.
- 2 Whether the applicant has demonstrated sufficient grounds for the exercise of the court's equitable jurisdiction under rule 5(2)(b) of the Court of Appeal Rules.
Ratio Decidendi
The Court of Appeal found that the applicant had not demonstrated sufficient grounds to warrant the exercise of its equitable jurisdiction to grant a stay of execution. The applicant had already been given time to vacate the premises, a consent order had been recorded to that effect, and the substantive appeal had been struck out. The court concluded that the applicant was merely using the court's processes to delay execution and continue possession of the suit premises contrary to the orders of the superior court. Accordingly, the application for stay was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI (Coram: Omolo, Shah & Lakha, JJ.A.) CIVIL APPLICATION NO. NAI. 175 OF 1998
JOHN NDUNGUNGETHE.......................................APPLICANT
AND
1. PATRICK MURIMA GITAU
2. EDWARD NGANGA KAMAU
3. PETER NJOROGE RIBIA.................................RESPONDENTS
(An application for stay of execution of the judgment and decree of the High Court of Kenya at Nairobi (Khamoni, J.) dated 14th of July in H.C.C.C. NO. 4259 OF 1989)
********************
RULING OF THE COURT:
The applicant before us was ordered to vacate the suit premises by the superior court. He did not do so, although his other three co-defendants vacated the suit premises, presumably pursuant to the orders of the superior court.
This court ordered, at one stage, maintenance of status quo, as the appeal in question (pending the hearing of which the stay of
execution was sought) was to be heard on 28th April, 1998. That appeal, Civil Appeal No. 217 of 1997, was struck out.
The issue of eviction of the applicant came up before the superior court on 26th May, 1998 when the applicant merely sought
further time to move out and a consent order to that effect was recorded as follows:
"1. That hearing be and is hereby stood over to 4th June, 1998 at 2. 30 p.m. to allow time for the Respondents (one of them being the applicant) to give possession or move out if he is still on the said piece of land."
The superior court, on 4th June, 1998 ordered that the respondents be put into possession of the suit land (Land Parcel Dagoretti/Riruta 2218).
It was thereafter that this application was filed. The applicant is using the machinery of the court (that is normal delays in execution of eviction orders) to perpetrate his alleged possession of the suit premises.
We are not able to say that the applicant is deserving of the exercise of the equitable jurisdiction of this court, under rule 5(2)(b) of the Rules of this Court and we accordingly dismiss this application with costs.
Dated and delivered at Nairobi this 17th day of July,1998.
R.S.C. OMOLO
...............
JUDGE OF APPEAL
A.B. SHAH
..............
JUDGE OF APPEAL
A.A. LAKHA
...............
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR