[2019] KEELC 4493 (KLR)
The court found that the applicant had demonstrated substantial loss would occur if evicted from the suit land, as he and his family would be rendered homeless. The application for stay was filed within a reasonable time, and the court determined that provision of security was unnecessary because the suit land would...
Source-derived case information.
- Citation
- [2019] KEELC 4493 (KLR)
- Parties
- Appellant: Justus Mutavi Kioko; Respondent: Boniface Makau Nzoka; Respondent: Kithuka Ikinya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 10 of 2018
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application allowed
- Judges
- OA Angote
- Legal Topics
- Stay of Execution, Substantial Loss, Eviction Orders, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justus Mutavi Kioko
Appellant
Boniface Makau Nzoka
Respondent
Kithuka Ikinya
Respondent
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 is not granted.
- 2 Whether the application for stay was filed without unreasonable delay.
- 3 Whether security for due performance is necessary in the circumstances.
Ratio Decidendi
The court found that the applicant had demonstrated substantial loss would occur if evicted from the suit land, as he and his family would be rendered homeless. The application for stay was filed within a reasonable time, and the court determined that provision of security was unnecessary because the suit land would remain available for execution should the appeal fail. The respondents' failure to properly oppose the application further supported granting the stay. Accordingly, the court allowed the application for stay of execution pending the determination of the appeal.
Court Disposition
application allowed
Orders
- Stay of execution of the judgment dated 20th March, 2018 in Civil Suit No. 1026 of 2009 at Machakos pending hearing and determination of the appeal.
- Costs of the application to be provided for.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. APPEAL NO. 10 OF 2018
JUSTUS MUTAVI KIOKO......................................APPELLANT
VERSUS
BONIFACE MAKAU NZOKA..........................1ST RESPONDENT
KITHUKA IKINYA ..........................................2ND RESPONDENT
(Being an Appeal from the Judgment of Chief Magistrate’s Court at Machakos in Civil Case No. 1026 of 2009 delivered on20th March, 2018 by Hon. A.G. Kibiru– CM)
RULING
1. In his Application dated 20th April, 2018, the Appellant/Applicant is seeking for the following orders:
a. That the execution of Judgment dated 20th March, 2018 in Civil Suit No. 1026 of 2009 at Machakos be stayed pending the hearing and determination of this Application.
b. That the execution of Judgment dated 20th March, 2018 in Civil Suit No. 1026 of 2009 at Machakos be stayed pending the hearing and determination of the Appeal herein.
c. That the costs of this Application be provided for.
2. The Application is premised on the grounds that the Applicant has lodged an Appeal against the Judgment of the Magistrate in Civil Suit No. 1026 of 2009, Machakos; that the Applicant will suffer substantial loss if the Judgment is executed and that unless an order of stay of the Judgment is granted, the Appeal will be rendered nugatory.
3. The Appellant/Applicant has deponed that he faces the risk of being evicted from the suit land where he has established his home unless an order staying eviction is issued and that he will suffer substantial loss.
4. The Respondents did not file a reply to the Application dated 20th April, 2018. However, both parties filed written submissions. Having not filed a Replying Affidavit or Grounds of Opposition pursuant to the provisions of Order 51 Rule 14 of the Civil Procedure Rules, the filing of submissions by the Respondents’ advocate was unprocedural. The submissions filed on 8th October, 2018 by the Respondents’ advocate are therefore expunged from the record.
5. The Applicant’s advocate submitted that if the orders of the lower court are executed, his client will be expected to vacate the suit land; that the Appellant’s family has settled on the suit land and that an order of stay should be granted.
6. In the Judgment of the court in Machakos CMCC No. 1026 of 2009 dated 20th March, 2018, the court ordered the Appellant to vacate parcels of land known as Muthetheni/Kyethivo 1/700 and 697 within ninety (90) days.
7. The law relating to stay of execution of an order or decree is found under Order 42 Rule 6(2) (a) and (b) of the Civil Procedure Rules which provides as follows:
“6(2) No order for stay of execution shall be made undersub rule (1) unless—
(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.”
8. The Appellant has annexed on his Affidavit photographs showing the permanent structures that he has put on the suit land, which is the land that he claims the Respondents are holding in trust.
9. Having exhibited photographs showing the permanent structures that are standing on the suit premises, it follows that the eviction of the Appellant from the suit land will render him and his family homeless, thus occasioning him substantial loss. The Application by the Appellant was filed within one month of the date of the Judgment. Therefore, the said Application was filed without undue delay.
10. Having held that the eviction of the Appellant from the suit land will occasion him substantial loss, and the Application for stay of execution having been filed within a reasonable time, I find that the provision of security for the due performance of the decree, in the event the Appellant losses the Appeal, is not necessary because the suit land will still be available.
11. For those reasons, I allow the Notice of Motion dated 20th April, 2018 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 22ND DAY OF FEBRUARY, 2019.
O.A. ANGOTE
JUDGE