[2013] KEHC 5339 (KLR)
The court found that the applicant failed to demonstrate any sufficient cause for the grant of a stay of execution or injunction. There was no evidence of a notice of appeal or any active steps taken to pursue an appeal. The applicant had ample time to act after judgment but did not do so diligently. The pending...
Source-derived case information.
- Citation
- [2013] KEHC 5339 (KLR)
- Parties
- Plaintiff: John Sember Namatsi; Defendant: Juma Wawire Wasike
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 47 of 2003
- Procedural Posture
- Civil Case / Ruling on Application for Stay of Execution and Injunction Post Judgment
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Injunctions, Eviction Orders, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Sember Namatsi
Plaintiff
Juma Wawire Wasike
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay of Execution and Injunction Post Judgment
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment delivered on 6.3.2012.
- 2 Whether an injunction should issue restraining the plaintiff and police from interfering with the applicant's occupation of the suit property.
- 3 Whether the application is merited in light of the pending civil suit and alleged appeal.
Ratio Decidendi
The court found that the applicant failed to demonstrate any sufficient cause for the grant of a stay of execution or injunction. There was no evidence of a notice of appeal or any active steps taken to pursue an appeal. The applicant had ample time to act after judgment but did not do so diligently. The pending civil suit for adverse possession did not involve the plaintiff and was not relevant to the current dispute. The respondent, as the registered owner, was entitled to enforce the eviction order. Granting the application would effectively vacate the judgment without justification. The application was therefore dismissed for lack of merit.
Court Disposition
application dismissed with costs
Orders
- The application dated 13.9.2012 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
Civil Case 47 of 2003 [if gte mso 9]><![endif][if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]
JOHN SEMBER NAMATSI ………………… PLAINTIFF/RESPONDENT
V E R S U S
JUMA WAWIRE WASIKE …………………... DEFENDANT/APPLICANT
R U L I N G
The application dated 13. 9.2012 is seeking orders that there be a stay of execution of the judgment of the court, that an order of injunction be issued to restrain the plaintiff and the OCS Navakholo police station from interfering with the applicant’s peaceful occupation of plot number BUNYALA/BUDONGA/315. The application is supported by the applicant’s affidavit sworn on the same date. The plaintiff/respondent filed a notice of preliminary objection as well as a replying affidavit sworn by the plaintiff on the 17. 9.2012. Parties agreed to file written submission and rely on the documents on record.
The applicant’s contention is that this court delivered its judgment on 6. 3.2012. He instructed the firm of Momanyi Manyoni & Company Advocates who were handling the matter for him to lodge an appeal. The said advocates delayed in obtaining typed proceedings and he changed advocates. His advocates have advised him that his intended appeal has high chances of success. On the 11. 9.2012 26 armed people and fourteen armed policemen invaded his homestead and demolished his eight residential houses. His five cows were killed and property worth KShs.3 million was damaged. He was not served with the eviction order. He would like the eviction to be stayed so that he can pursue his appeal. The applicant/defendant further maintains that there is a case still pending before this court being civil suit no. 305 of 1999 (O.S.)
The plaintiff’s preliminary objection is that the application is misconceived and incompetent. In the replying affidavit the plaintiff avers that he is not a party to Civil Suit No. 305 of 1999. He obtained an eviction order and the applicant asked for more time to move out voluntarily. When it appeared that the defendant was simply buying time he decided to effect the court order. He is the registered owner of plot number BUNYALA/BUDONGA/1094. There was no single head of cattle and nothing was looted. There were six grass thatched houses that were demolished and the applicant was evicted.
The application dated 13. 9.2012 is not seeking orders of stay of execution pending appeal. The court delivered its judgment on the 6. 3.2012. According to the respondent an eviction order was duly served on the applicant on the 26. 4.2012. The nature of this dispute is that the respondent is the registered owner of the suit property as explained in the judgment of this court having bought it for KShs.420,000/=. The pending civil suit number 305 of 1999 does not involve the plaintiff herein and is a claim for adverse possession by the applicant. The proceedings herein show that MWATUMA WAWIRE NYONGESA who was the registered owner of the original plot number BUNYALA/BUDONGA/315 divided the land into two plots namely – 1094 and 1095. I do find that the applicant has had ample time to pursue his appeal. There is no notice of appeal to the Court of Appeal annexed in support of the application. In short the applicant would like to reverse the judgment of the court without any good reasons. Granting the application would mean vacating the judgment. There is no time limit requested for the stay. There is no any sign that an appeal is being pursued. The payment for the proceedings was done on the 25. 6.2012 a period of three months from the date of delivery of the judgment.
I do find that the application dated 13. 9.2012 lacks merit and the same is dismissed with costs.
Delivered, dated and signed at Kakamega this 7th day of February, 2013
SAID J. CHITEMBWE
J U D G E