[2015] KEHC 697 (KLR)
The court found that the applicant had, by her own admission, transferred the suit land to her son during the pendency of the suit, thereby extinguishing her own title and interest in the property that was the subject of the appeal. As a result, she no longer had any legal or equitable interest in the suit land and...
Source-derived case information.
- Citation
- [2015] KEHC 697 (KLR)
- Parties
- Plaintiff: John Wesonga Sambula; Defendant: Julias Muthoni Njoroge
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 48 of 2011
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- SN Mukunya
- Legal Topics
- Stay of Execution, Abuse of Process, Transfer of Land During Suit, Interest in Suit Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Wesonga Sambula
Plaintiff
Julias Muthoni Njoroge
Defendant
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 judgment pending appeal.
- 2 Whether the applicant has any legal interest in the suit land after transferring it during the pendency of the suit.
- 3 Whether the application amounts to an abuse of the court process.
Ratio Decidendi
The court found that the applicant had, by her own admission, transferred the suit land to her son during the pendency of the suit, thereby extinguishing her own title and interest in the property that was the subject of the appeal. As a result, she no longer had any legal or equitable interest in the suit land and thus stood to lose nothing from the execution of the judgment. The court held that seeking a stay of execution in these circumstances, where the applicant had rendered her own appeal nugatory by her actions, amounted to an abuse of the court process. Consequently, the application for stay was dismissed as unmerited.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL CASE NO.48 OF 2011
JOHN WESONGA SAMBULA……………………......……………………PLAINTIFF
VERSUS
JULIAS MUTHONI NJOROGE…………………………..............………DEFENDANT
RULING
The applicant brings this application under order 42 rule 6 and order 51 rule 1 of the civil procedure rules.
The applicant asks for stay of execution and or implementation of this Court’s judgement delivered on 15/3/2015 pending the hearing and final determination of the applicant’s appeal filed on the Court of Appeal at Kisumu as No.36 of 2015.
Among the applicant’s grounds for seeking the stay is that the applicant is the immediate owner of suit land confirmed in title Number East Bukusu/South Kanduyi/465 which is adjacent to the plaintiff’s land. In her supporting Affidavit she calls herself immediate owner of the suit land. Mrs. Chunge leaned Counsel for the applicant argues that if these orders are not granted, the intended appeal shall be rendered nugatory. She admits that the suit land has been transferred to the applicant’s son during the pendency of the suit.
The respondent in opposing the suit stated that the applicant has transferred the suit to a third party who was a party to the suit. That the applicant later transferred the land to her son one Moses Waweru Njoroge on 20/12/2013. It was argued that the applicant has been busy putting this land out of reach of the Court. It was argued that she has dirty hands. That she has left herself where she has no interest in the suit. Further that the applicant has nothing to lose. Finally it is argued that the application is not merited and is meant to steal a match and is an abuse of the process of the Court.
The applicant has on her own admission transferred the suit land during the pendency of this suit. From the annexed memorandum of appeal to the Court of appeal, the applicant is attacking this Court’s judgement in regard to her land East Bukusu/South Kanduyi 464 and the respondent’s 465. She has extinguished her title subject to the appeal while the appeal is pending. She has as a matter of fact rendered her own appeal nugatory by extinguishing her title subject of the appeal.
Asking for a stay of execution of this Court orders and therefore relying on the filed appeal No.36 of 2015 when she now has no interest in the suit land is clearly an abuse of the process of the Court.
I agree with the respondent, the applicant’s hands are tainted, she is now a stranger to the suit land and she now has nothing to lose in this application and also in the appeal. The application is not merited. It is dismissed with costs.
DATED and DELIVERED at BUNGOMA this 29th day of July, 2015
S. MUKUNYA
JUDGE