[2021] KEELC 2776 (KLR)
The court found that the applicant had demonstrated sufficient grounds for a conditional stay of execution, particularly in light of the risk of the suit properties being disposed of and the potential to render the appeal nugatory. However, the stay was made conditional upon the applicant depositing Kshs.800,000 as...
Source-derived case information.
- Citation
- [2021] KEELC 2776 (KLR)
- Parties
- Appellant: Julius Kilemi Maitai; Respondent: Silas Milanyi Maitai; Respondent: John Ithai Maitai; Respondent: Douglas Mberia Maitai; Respondent: District Land Adjudication Officer, Tigania East/West Constituency; Respondent: Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 44 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution and Injunction Pending Appeal
- Outcome
- Conditional stay of execution granted; other prayers to be heard inter partes.
- Legal Topics
- Stay of Execution, Injunctions, Land Disputes, Security for Costs
- 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
Julius Kilemi Maitai
Appellant
Silas Milanyi Maitai
Respondent
John Ithai Maitai
Respondent
Douglas Mberia Maitai
Respondent
District Land Adjudication Officer, Tigania East/West Constituency
Respondent
Hon. Attorney General
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution and Injunction 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 established grounds for the grant of a temporary injunction restraining the respondents from dealing with the suit properties.
- 3 Whether the applicant should be required to deposit security as a condition for stay.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient grounds for a conditional stay of execution, particularly in light of the risk of the suit properties being disposed of and the potential to render the appeal nugatory. However, the stay was made conditional upon the applicant depositing Kshs.800,000 as security within 14 days, failing which the stay would lapse. The other prayers, including the injunction, were deferred for inter partes hearing. The court exercised its discretion to balance the interests of both parties and to ensure that the appeal process is not rendered futile.
Court Disposition
Conditional stay of execution granted; other prayers to be heard inter partes.
Orders
- A sum of Kshs.800,000 to be deposited with court by the applicant as deposit for security within 14 days, failing which the order of stay shall lapse.
- The application to be heard inter partes on 21st July, 2021 by an ELC Judge at Meru.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
MERU ELC APPEAL CASE NO. 44 OF 2018
JULIUS KILEMI MAITAI ..................................................APPELLANT
VERSUS
SILAS MILANYI MAITAI........................................ 1ST RESPONDENT
JOHN ITHAI MAITAI................................................2ND RESPONDENT
DOUGLAS MBERIA MAITAI...................................3RD RESPONDENT
DISTRICT LAND ADJUDICATION OFFICER
TIGANIA EAST/WEST CONSTITUENCY ........... 4TH RESPONDENT
HON. ATTORNEY GENERAL.................................5TH RESPONDENT
RULING
1. This application states that it has been brought to court under sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, Cap 21 & Order 42 Rule 6 of the C.P.R.
2. The application seeks the following orders:-
1. That this application be certified as urgent and be heard ex-parte in the first instance.
2. That status quo be maintained on L.R. Nyambene/Kitheo Nos.2611, 2612, 2579, 2348, 2266, 2176, 479, 1396, 2222,1401, 2576 and 795.
3. That there be a stay of execution of the judgment of Hon. G. Sogomo in Tigania PMCC No. 131 of 2010 delivered on 11th October, 2018 pending the hearing and determination of this appeal.
4. That pending the hearing of this application inter-partes, this honourable court be pleased to issue temporary orders of injunction restraining the Respondents, their agents, servants, employees and whomsoever acting on their behalf or instructions from plucking tea, entering, constructing, cultivating, erecting any structures, trespassing, using, selling or in any manner whatsoever from dealing with L.R. Nyambane/Kitheo Nos.2611, 2612, 2579, 2348, 2266, 2176, 479, 1396, 2222, 1401, 2576 and 795.
5. That pending the hearing of this appeal, this honourable court be pleased to issue temporary orders of injunction restraining the Respondents, their agents, servants, employees and whomsoever acting on their behalf or instructions from plucking tea, entering, constructing, cultivating, erecting any structures, trespassing, using, selling or in any manner whatsoever from dealing with L.R. Nyambene/Kitheo Nos.2611, 2612, 2579, 2348, 2266, 2176, 479, 1396, 2222,1401,2576 and 795.
6. That the orders so granted above be served upon the District Land Registrar – Urru-Tigania West.
7. That costs be provided for.
3. The application is buttressed by the affidavit of Julius Kilemia Maitai, the appellant sworn on 25th May, 2021 and has the following grounds:-
a. That the Applicant is the owner of L.R. Nyambene/Kitheo Nos. 2611, 2612, 2579, 2348, 2266, 2176, 479, 1396, 2222, 1401, 2576 and 795 which are subject in this appeal.
b. That some of the Respondents have started disposing off the suit properties and have threatened to evict the applicant.
c. That the applicant has filed an arguable appeal with high chances of success.
d. That this appeal will be rendered nugatory if the Respondents are not restrained.
e. That the applicant is aged 82 years having been born in the year 1938 and is being given assistance from his son Kilemi Julius.
f. That the matter has taken over 43 years and has not been resolved.
4. Upon careful consideration, I only grant a conditional stay of execution. The other prayers will be canvassed interpartes.
The following orders are issued:
a) A sum of Kshs.800,000/= be deposited with court by the applicant as deposit for security within 14 days of today failing which the order of stay granted herein shall automatically lapse.
b)The application to be heard interpartes on 21st July, 2021 by an ELC Judge at Meru.
c) No costs are awarded.
DELIVERED IN OPEN COURT AT CHUKA THIS 28TH DAY OF JUNE, 2021 IN THE PRESENCE OF:
CA: NDEGWA
Applicant and his advocate are not in court
P. M. NJOROGE,
JUDGE.