[2006] KEHC 594 (KLR)
The court found that the applicant would suffer substantial loss if the order for stay was not granted, as the land in question could be taken out of his possession and control, rendering the appeal nugatory. The court also noted that the applicant's right of appeal was not challenged. Accordingly, the court allowed...
Source-derived case information.
- Citation
- [2006] KEHC 594 (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 30 of 2006
- Procedural Posture
- Civil Appeal / Stay Application
- Outcome
- application allowed
- Legal Topics
- Stay of Execution, Land Ownership Disputes, Appeals Committee Jurisdiction
- 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 applicant is entitled to an order of stay of execution pending appeal.
- 2 Whether the applicant will suffer substantial loss if stay is not granted.
- 3 Whether security for due performance should be ordered.
Ratio Decidendi
The court found that the applicant would suffer substantial loss if the order for stay was not granted, as the land in question could be taken out of his possession and control, rendering the appeal nugatory. The court also noted that the applicant's right of appeal was not challenged. Accordingly, the court allowed the application for stay on condition that the applicant deposits KES 20,000 as security within 30 days.
Court Disposition
application allowed
Orders
- Stay of execution granted pending hearing and determination of the appeal.
- Applicant to deposit KES 20,000 as security in court within 30 days.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Civil Appeal 30 of 2006
JOHN NJUE NYAGA…………………………….…………………APPELLANT
VERSUS
NICHOLAS NJIRU NYAGA………………………………..1ST RESPONDENT
HARRISON IRERI NYAGA……………………....………..2ND RESPONDENT
RULING
There is before the court application dated 2/6/2006 seeking order for stay pending the hearing and determination of the appeal filed against decisions of Appeals Committee under the provisions of Land Disputes Act.
The application is brought by way of Chamber Summons and not Notice of Motion as under order 41 C.P.C but no objection is raised. The application is supported by affidavit of the applicant sworn on 2/6/2006.
The Applicant says the decisions of Tribunal and Appeals Committee results in the interference of the ownership of land which is already requested in his name under Registered Land Act Cap. 300. The applicant further swears that if stay is not granted the appeal will be rendered nugatory and he will suffer irreparable loss as the land will get out of his possession and control. The first Respondent in his replying affidavit says he has taken steps to implement the decision of Lands Tribunal and he has already applied and obtained consent from the Land Control Board.
I notice there is no allegation that the applicant has no right of appeal and therefore the court must protect his right.
I am convinced that the Applicant will suffer substantial loss if the order is not granted. As for security, the Applicant shall deposit in court the sum of Sh.20,000/= being security within next 30 days.
The application is therefore allowed and stay granted as prayed. Costs in the cause.
Dated on 4th August, 2006
J.N. KHAMINWA
JUDGE
Read in presence of Applicant’s Counsel Mr. Kerongo.
J.N. KHAMINWA
JUDGE