[2014] KEHC 7145 (KLR)
The court found that the applicant had been in occupation of the disputed land for many years and that eviction would cause substantial loss, a fact not denied by the respondent. The application for stay was filed promptly and without undue delay. The respondent's assurance that he did not intend to evict the...
Source-derived case information.
- Citation
- [2014] KEHC 7145 (KLR)
- Parties
- Appellant: Joseph Patrick Wanganga; Respondent: Patrick N Kimethu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 440 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- stay of execution granted pending appeal
- Judges
- DA Onyancha
- Legal Topics
- Stay of Execution, Substantial Loss, Eviction, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Patrick Wanganga
Appellant
Patrick N Kimethu
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether the applicant will suffer substantial loss if the stay is not granted.
- 3 Whether the application for stay was filed promptly.
Ratio Decidendi
The court found that the applicant had been in occupation of the disputed land for many years and that eviction would cause substantial loss, a fact not denied by the respondent. The application for stay was filed promptly and without undue delay. The respondent's assurance that he did not intend to evict the applicant did not negate the risk of substantial loss if eviction were to occur. The court held that the conditions for granting a stay of execution had been satisfied and therefore granted the stay pending the determination of the appeal.
Court Disposition
stay of execution granted pending appeal
Orders
- An order of stay of execution is granted until the appeal is finally determined.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NUMBER 440 OF 2013
JOSEPH PATRICK WANGANGA. ...................... APPLICANT/APPELLANT
VERSUS
PATRICK N KIMETHU. .............................................................. RESPONDENT
R U L I N G
The application before the court is the Notice of Motion dated 21st August, 2013 seeking a stay of execution pending the determination of appeal. It was filed by the Appellant.
The facts show that the subject matter of the dispute is a piece of land occupied by the appellant for many years including the present period. The appeal appears to have been timeously filed. So was this application.
The application is based on the grounds that if the stay of execution is not granted the Appellant is likely to suffer substantial loss in that the Respondent is likely to evict him from the piece of which he has lived on for many years and that the eviction will cause much suffering which cannot be easily compensated.
The record show that the Respondent admits that the applicant has been in continuous occupation and does not deny that eviction will cause substantial loss. What he states is that he has no intention of evicting the Applicant and therefore there is no need for the court to grant the stay sought. He also argues that the appeal has no chances of success because the certified copy of judgment was not annexed to it when it was filed.
I have considered the facts of this case. The appeal validly lies. This application was filed promptly and without undue delay. The applicant is and has been in occupation of the piece of land the subject of this suit for many years. The respondent does not foresee the applicant being evicted and does not intend to do so. It is not denied that the applicant will suffer substantial loss if, by any chance he is evicted. In these circumstances, the conditions for granting a stay of execution have been met and nothing persuades this court from granting the order sought. Accordingly, the order of stay sought is hereby granted until the appeal is finally determined. Orders accordingly.
Dated and delivered at Nairobi this 12th day of February, 2014.
...........................................
D A ONYANCHA
JUDGE