[2023] KEHC 21440 (KLR)
The court found that enforcing the order to demolish the appellant's home before the appeal would effectively deny him his right of appeal, as the subject matter of the appeal would be destroyed, rendering the appeal nugatory. Furthermore, the order was contrary to section 152E(1) of the Land Act, which mandates a...
Source-derived case information.
- Citation
- [2023] KEHC 21440 (KLR)
- Parties
- Appellant: Wenje Awino Jung’A; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 26 'A' of 2023
- Procedural Posture
- Criminal Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution granted pending appeal.
- Judges
- RPV Wendoh
- Legal Topics
- Forcible Detainer, Stay of Execution, Right of Appeal, Eviction Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wenje Awino Jung’A
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the order compelling the appellant to demolish his home before sentencing violates his right of appeal.
- 2 Whether the trial court's order was made without jurisdiction and contrary to section 152E(1) of the Land Act.
- 3 Whether granting a stay of execution is necessary to preserve the substratum of the appeal.
Ratio Decidendi
The court found that enforcing the order to demolish the appellant's home before the appeal would effectively deny him his right of appeal, as the subject matter of the appeal would be destroyed, rendering the appeal nugatory. Furthermore, the order was contrary to section 152E(1) of the Land Act, which mandates a minimum three-month notice before eviction. The court concluded that the appellant was deserving of a stay of execution to preserve the status quo pending the determination of the appeal.
Court Disposition
Application for stay of execution granted pending appeal.
Orders
- Prayers 2 and 3 of the Notice of Motion are granted pending hearing of the appeal.
- The Record of Appeal to be filed and served within sixty (60) days.
Full Case Text
Judgment text and source record
22 paragraphs
Jung’a v Republic (Criminal Appeal 26 'A' of 2023) [2023] KEHC 21440 (KLR) (20 July 2023) (Ruling)
Neutral citation: [2023] KEHC 21440 (KLR)
Republic of Kenya
In the High Court at Migori
Criminal Appeal 26 'A' of 2023
RPV Wendoh, J
July 20, 2023
Between
Wenje Awino Jung’A
Appellant
and
Republic
Respondent
Ruling
1. By the application dated 16/5/2023, the applicant, Wenje Awino Jung’a seeks an order that the court do suspend the execution of the Order of the trial court dated 11/5/2023 compelling the applicant to demolish his home first before sentence on 18/5/2023, pending hearing and determination of his appeal.
2. The grounds upon which the application is premised are that the appellant has appealed against the judgment of the court whereby he was convicted on the charge of forcible detainer contrary section 92 of the Penal Code; that the court ordered the appellant to demolish his home before returning to court for sentencing on 18/5/2023. It is the applicant’s contention that the order directing him to demolish his house before sentence is made in error and in violation of his right of appeal and in violation of the mandatory provisions of section 152 E-(1) of the Land Act which requires notice of a minimum of three months before eviction in any case; that the order is made without jurisdiction and is illegal and mischievous.
3. The application is also supported by the affidavit of the applicant where he adds that if he goes ahead to demolish his house, then there will be no need to proceed with the appeal.
4. The Respondent conceded the appeal.
5. The applicant was convicted on a charge of forcible detainer contrary to section 92 of the Penal Code. The court found that the applicant was claiming to be occupying Plot No. 704 but did not produce any document to show the existence of the said plot. The court then went ahead to order that the applicant vacate the land in question in one week and remove all structures. The court had noted that the applicant had lived on the said land for over 20 years meaning that that was his home. If the applicant went ahead to demolish the structures, it means that the substratum of the appeal will have been removed and therefore the appeal, if it proceeds will be rendered nugatory and will serve no purpose.
6. In essence, the said order of the court would have denied the applicant his right of appeal. I have also looked at the provisions of section 152E of the land Act and I find that the applicant is deserving of the order prayed for. I hereby grant prayers 2 and 3 of the Notice of Motion pending hearing of the appeal.
7. The Record of Appeal be filed / served within sixty (60) days hereof. Mention before Deputy Registrar on 20/9/2023.
DELIVERED, DATED AND SIGNED AT MIGORI THIS 20TH DAY OF JULY, 2023. R. WENDOHJUDGEIn presence of; -Mr. Kaino Prosecution CounselAppellant AbsentMr. Kisera for Applicant