[2021] KEELC 2195 (KLR)
The court found that there is a pending appeal which has not yet been heard and determined. To preserve the subject matter of the appeal and prevent execution that could render the appeal nugatory, the court exercised its discretion to grant a stay of proceedings in the lower court. The court was satisfied that the...
Source-derived case information.
- Citation
- [2021] KEELC 2195 (KLR)
- Parties
- Appellant: Kamechwa Longura Lomormoi; Respondent: Stephen Luvubi alias Stephen Lubusi Ambako
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1 of 2021
- Procedural Posture
- Elc Appeal / Ruling on Stay of Proceedings Pending Appeal
- Outcome
- Application for stay of proceedings granted.
- Legal Topics
- Stay of Proceedings, Execution Pending Appeal, Appeal Rights, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamechwa Longura Lomormoi
Appellant
Stephen Luvubi alias Stephen Lubusi Ambako
Respondent
Procedural Posture
Elc Appeal / Ruling on Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of proceedings in the lower court pending the hearing and determination of the appeal.
- 2 Whether the appellant has demonstrated sufficient grounds for stay, including risk of execution and substantial loss.
Ratio Decidendi
The court found that there is a pending appeal which has not yet been heard and determined. To preserve the subject matter of the appeal and prevent execution that could render the appeal nugatory, the court exercised its discretion to grant a stay of proceedings in the lower court. The court was satisfied that the appellant had demonstrated sufficient grounds for stay, including the risk of execution following taxation and the fact that the respondent would still have the opportunity to execute the judgment if the appeal fails. Accordingly, the application for stay was granted as prayed.
Court Disposition
Application for stay of proceedings granted.
Orders
- All execution in Kapenguria PMCC Land Case No. 23 of 2019 is stayed pending the hearing and determination of the appeal.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC APPEAL NO. 1 OF 2021
KAMECHWA LONGURA LOMORMOI..APPELLANT
VERSUS
STEPHEN LUVUBI alias
STEPHEN LUBUSI AMBAKO...............RESPONDENT
RULING
The Application
1. By a notice of motion dated 27/4/2021 and filed on 28/4/2021 brought under provisions of Sections 1A, 1Band3Aof theCivil Procedure Act, the appellant seeks the following orders:-
(1)…spent
(2)That this honourable court be pleased to issue an order for stay of proceedings in KAPENGURIA ELC NO. 23 OF 2019, pending hearing and determination of this appeal.
(3)…spent
(4)That costs be provided for.
2. The application is supported by the supporting affidavit of the appellant sworn on 27/4/2021. The grounds upon which the appellant relies on are that the appeal herein raises substantial issues and that the lower court has listed the matter for hearing for taxation.
The Response
3. The respondent filed a replying affidavit sworn on 4/5/2021. His response is that the application has been brought after inordinate delay and that no evidence of substantial loss has been shown. It is stated that the application for stay is a ploy to delay the respondent from enjoying the fruits of his judgment.
4. The Appellant’s Supplementary Affidavit.
5. The appellant filed supplementary affidavit sworn on 14/6/2021. He depones that the appeal though filed is yet to be determined; that execution is likely after taxation; that if the appeal does not succeed the respondent would have a chance to execute the judgment of the lower court against the appellant thereafter.
6. I have considered the instant application and found that there is an appeal in place which has not been heard and determined and so the process of execution ought to be stayed pending the hearing and determination of the said appeal.
7. I therefore grant the application dated 27/4/2021 as prayed in prayer no 2 thereof. For the avoidance of doubt, all execution in the lower court suit that is Kapenguria PMCC Land Case NO. 23 OF 2019is hereby stayed pending the hearing and determination of the appeal filed against the judgment of the lower court in that case.
It is so ordered.
DATED, SIGNED AND DELIVERED AT KITALE VIA ELECTRONIC MAIL ON THIS 5TH DAY OF AUGUST, 2021.
MWANGI NJOROGE
JUDGE, ELC, KITALE.