[2015] KEELC 94 (KLR)
The court found that the applicant filed the application for stay within a reasonable time after judgment and demonstrated that he would suffer substantial loss if the two bungalows were demolished before determination of the appeal. The court held that security for costs was warranted given the applicant's...
Source-derived case information.
- Citation
- [2015] KEELC 94 (KLR)
- Parties
- Plaintiff: Joyce Chemaiyo Bett; Plaintiff: John Kitilit Bett; Defendant: Dennis Walter Bala; Defendant: Timothy Olanda Bala; Defendant: Josiah Okiri Bala
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 18 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed on condition.
- Judges
- EO Obaga
- Legal Topics
- Stay of Execution, Substantial Loss, Security for Costs, Appeal Process, Demolition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joyce Chemaiyo Bett
Plaintiff
John Kitilit Bett
Plaintiff
Dennis Walter Bala
Defendant
Timothy Olanda Bala
Defendant
Josiah Okiri Bala
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss if stay of execution is not granted.
- 2 Whether the application for stay was filed without unreasonable delay.
- 3 Whether security for costs should be ordered as a condition for stay.
Ratio Decidendi
The court found that the applicant filed the application for stay within a reasonable time after judgment and demonstrated that he would suffer substantial loss if the two bungalows were demolished before determination of the appeal. The court held that security for costs was warranted given the applicant's continued enjoyment of rental income from the disputed property. Accordingly, stay of execution was granted on condition that the applicant deposits Kshs. 200,000 as security in a joint interest-earning account in the names of the advocates within fourteen days, failing which the stay would lapse automatically.
Court Disposition
Application for stay of execution pending appeal allowed on condition.
Orders
- Stay of execution of the judgment delivered on 21/5/2015 is granted pending appeal, subject to the applicant depositing Kshs. 200,000 as security in a joint interest-earning account in the names of the advocates within fourteen days.
- If the security is not deposited within fourteen days, the stay granted will automatically lapse.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 18 OF 2013
JOYCE CHEMAIYO BETT
JOHN KITILIT BETT ........... PLAINTIFFS/RESPONDENTS
VERSUS
DENNIS WALTER BALA
TIMOTHY OLANDA BALA …..... DEFENDANTS/APPLICANTS
JOSIAH OKIRI BALA
R U L I N G
The first applicant filed a notice dated 22/6/2015 in which he seeks stay of execution pending appeal. The respondents had obtained a judgment in their favour on 21/5/2015. In that judgment, the applicant had been ordered to demolish some two bungalows which are standing on the property which was found to belong to the respondents.
The applicant contends that he has filed an appeal to the Court of Appeal against the said judgment and that if stay is not granted, the appeal will be rendered nugatory as he will already have suffered loss if the two buildings are brought down before the appeal is determined.
The applicant's application is opposed by the respondents who contend that the application lacks merits as it is only meant to deny them from enjoying the fruits of the judgments. They contend that the applicant has not demonstrated that he has an arguable case.
In response to the applicant's contention that there is no demonstration that there is an arguable appeal, the applicant argues that this point can only be taken in the court to which the appeal is filed and not the superior court from where the judgment was given.
The applicant's application has been brought under Order 42 Rule 6 of the Civil Procedure Rules. This rule set down conditions upon which stay of execution pending appeal can be granted. First the applicant has to demonstrate that he will suffer substantial loss if stay is not granted. Secondly the application has to be brought without unreasonable delay. Thirdly there should be such security as the court orders for the due performance of the decree as may ultimately be binding upon the applicant.
In the instant case, the judgment being appealed against was delivered on 21/5/2015. This application was filed 22/6/2015. This is a period of one month. I do not find the same to be unreasonable in the circumstances. On whether there is demonstration that there will be substantial loss, there is no contention that there are two bungalows which are standing on the suit land. The same have been ordered demolished. Costs have already been taxed and decree extracted. If the two buildings are demolished before the appeal is determined, the applicant will suffer loss in the event that he succeeds in his appeal. I therefore find that the applicant has demonstrated that he will suffer substantial loss if stay of execution is not granted.
This is a case where the applicant is enjoying rental income from a property which was found to belong to the respondents. This is a clear case where security for costs is called for. I order that the applicant do provide costs of Kshs.200,000/= to be deposited in a joint interest earning account in the name of the advocates within 14 (fourteen) days from today. If this order is not complied with the stay granted will automatically lapse.
It is so ordered.
Dated, signed and delivered at Kitale on this 19th day of October, 2015.
E. OBAGA
JUDGE
In the presence of Mr. Teti for Mr. Yano for Respondent and Mr. Onyancha for Applicant.
Court Assistant – Winnie.
E. OBAGA
JUDGE
19/10/15