[2006] KEHC 453 (KLR)
The court found that the appellant had filed an appeal and that execution of the decree before the appeal is heard could cause substantial loss, particularly if the land is subdivided and registered in other names. The court held that the appellant is entitled to a stay of execution pending appeal, provided that...
Source-derived case information.
- Citation
- [2006] KEHC 453 (KLR)
- Parties
- Appellant: John Njue Nyaga; Respondent: Nicholas Njiru Nyaga; Respondent: Harrison Ireri Nyaga
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 50 of 2005
- Procedural Posture
- Civil Appeal / Stay Application
- Outcome
- application allowed with conditions
- Legal Topics
- Stay of Execution, Security for Performance, Land Disputes Tribunal Awards, Appeal Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njue Nyaga
Appellant
Nicholas Njiru Nyaga
Respondent
Harrison Ireri Nyaga
Respondent
Procedural Posture
Civil Appeal / Stay Application
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution pending appeal.
- 2 Whether the appellant has demonstrated sufficient reason and substantial loss to warrant stay.
- 3 Whether security for performance is required for grant of stay.
Ratio Decidendi
The court found that the appellant had filed an appeal and that execution of the decree before the appeal is heard could cause substantial loss, particularly if the land is subdivided and registered in other names. The court held that the appellant is entitled to a stay of execution pending appeal, provided that security for performance is furnished. The application was not filed with delay, and the requirement for security was satisfied by ordering a deposit of KES 50,000 within 21 days. The stay was granted on this condition to balance the interests of both parties and preserve the subject matter of the appeal.
Court Disposition
application allowed with conditions
Orders
- Stay of execution granted pending hearing and determination of the appeal, conditional upon appellant depositing KES 50,000 into court within 21 days.
- Costs in the cause.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Civil Appeal 50 of 2005
JOHN NJUE NYAGA…………………..………………………APPELLANT
VERSUS
NICHOLAS NJIRU NYAGA……………..………..……1ST RESPONDENT
HARRISON IRERI NYAGA …………….…..………….2ND RESPONDENT
RULING
The Appellant has filed an application seeking stay pending the hearing and determination of Appeal No. 50/2005 and Eastern Provincial Lands Appeal No. 30 of 2005.
The grounds upon which application is made are written on the application showing that no provisions of stay is contained in the rules of Land Disputes Tribunals Act and that the award was adopted as decree in the Magistrate Court. And that the Applicant will be prejudiced and suffer irreparable loss and damage if the decree is executed before the appeal is heard. And further that appeal will be rendered nugatory
The application is supported by affidavit of the appellant. This is the second application the first having been dismissed by the Trial Magistrate. I have perused the application. There is indeed some appeal filed by the applicant as admitted by the Respondent. It may not have merit as they allege that that will be determined by the appellate court. The acts by the Respondent of “having taken all necessary steps towards affecting the court decree” is not acceptable. If a party has a right of appeal he must be given opportunity to pursue the same.
Under this application the court is only required to consider a stay pending of such appeal. The requirement is for applicant to show that he has sufficient reason to warrant the grant of stay. He must show substantial loss and give security for performance of any order that may be binding upon him. The application is not filed with delay if the land is subdivided and registered in names of other persons the Applicant should suffer substantial loss.
I am satisfied that stay of execution should be granted and I grant the same on condition that the appellant shall deposit into court shs.50,000/- within the next 21 days to be security as demanded by the provisions of the law. Application allowed subject to payment aforesaid.
Costs in the cause.
Dated 12th March 2006.
J. N. KHAMINWA
JUDGE