[2017] KEELC 3407 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO.436 OF 2015

JOSANA ACADEMY .................................................................................PLAINTIFF

VERSUS

DAVID OWINO ONDENG ................................................................1ST DEFENDANT

KOSETIONY KIPRUTO TINDERET……….…………….……………..2ND DEFENDANT

KIPROTICH KORIR…………………………..………….………………..3RDDEFENDANT

COMMISSIONER OF LAND………………..…………….……………..4TH DEFENDANT

THE DISTRICT LAND REGISTRAR, KISUMU……….………….……..5TH DEFENDANT

RULING

1. David Owino Ondeng, the 1st Defendant, filed the notice of motion dated 26th September 2016 seeking for an order of stay of execution pending the hearing and determination of Kisumu H.C. Land case No.104 of 2016. The application is based on the six grounds on the notice of motion and is supported by the affidavit of George Shane Okoth, advocate, sworn on the 26th September 2016.

2. The application is opposed by the Plaintiff, Josana Academy, through the replying affidavit of Moses J. A. Orengo, advocate, sworn on the 11th October 2016.

3. The application came up for hearing on 7th February 2017 when Mr. Nyarige and Mr. Orengo, learned counsel for the 1st Defendant and the Plaintiff respectively, made their rival oral submissions.

4. The following are the issues for determination by the court;

a) Whether the 1st Defendant has made a case for stay of execution against the Plaintiff.

b) Whether the 1st Defendant has a pending case against the Plaintiff

c) What orders to issue.

d) Who pays the costs.

5. The court has carefully considered the grounds on the notice of motion, affidavit evidence, submissions by both counsel and come to the following conclusions;

a) That the Plaintiff was successful in his case against the 1st Defendant and four others as confirmed in the Judgment delivered on 7th May 2015, that among others granted him costs as prayed in the amended plaint.

b) That though the 1st Defendant filed a notice of appeal dated 11th May 2015 and lodged in court on 13th May 2015, the same was struck out on 27th May 2016 as confirmed by the copy of the Court of Appeal ruling in Kisumu. Civil Application No.32 of 2015 annexed to the replying affidavit.

c) That the 1st Defendant had by then filed Kisumu H.C. Civil Suit No.104 of 2016 through the Plaint dated 18th January 2016 and amended on 18th April 2016 as confirmed through the copy of the amended plaint annexed to the supporting affidavit. That the Plaintiff in this suit is not a party in Kisumu H.C.C. Suit No.104 of 2016 and there is therefore no evidence of any suit pending in any court between the parties in the current application.

d) That in the absence of any pending suit between the parties in this application, the court finds no basis on which to order stay of execution of the decree in this proceedings.

6. That flowing from the forgoing the 1st Defendant’s notice of motion against the Plaintiff dated 26th September 2016 is without merit and is dismissed with costs.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 15TH DAY OF MARCH 2017

In presence of;

Plaintiff Absent

1st Defendant Absent

Counsel Mr. Omaya for Okoth for 1st Defendant

Mr. Orengo for the Plaintiff

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

15/3/2017

15/3/2017

S.M. Kibunja Judge

Oyugi court Assistant

Parties absent

Mr Omaya for Okoth for the 1st Defendant/Applicant

Mr Orengo for Plaintiff/Respondent

Court: Ruling dated and delivered in open court in presence of

Mr Omaya for Okoth for 1st Defendant and Mr. Orengo for the Plaintiff.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

15/3/2017