[2023] KEELC 18912 (KLR)
The court found that the application for stay of execution was made without inordinate delay, as it was filed before the expiry of the stay granted by the lower court. The court further determined that the applicant was likely to suffer substantial loss if evicted and subsequently succeeded on appeal. The court held...
Source-derived case information.
- Citation
- [2023] KEELC 18912 (KLR)
- Parties
- Appellant: Joseph Ngethe Kibunja; Respondent: Karani Kuria; Respondent: Land Registrar Nakuru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E008 of 2023
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution pending appeal allowed on condition of provision of security for costs.
- Judges
- A Ombwayo
- Legal Topics
- Stay of Execution, Security for Costs, Substantial Loss, Eviction, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ngethe Kibunja
Appellant
Karani Kuria
Respondent
Land Registrar Nakuru
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment and decree pending appeal.
- 2 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 3 Whether security for costs should be imposed as a condition for stay.
Ratio Decidendi
The court found that the application for stay of execution was made without inordinate delay, as it was filed before the expiry of the stay granted by the lower court. The court further determined that the applicant was likely to suffer substantial loss if evicted and subsequently succeeded on appeal. The court held that security for costs was necessary and ordered the applicant to provide security of Kshs 500,000 or deposit Kshs 250,000 in court. The application for stay was therefore allowed on these terms, with costs to be in the appeal.
Court Disposition
Application for stay of execution pending appeal allowed on condition of provision of security for costs.
Orders
- Stay of execution of the judgment and decree delivered on 1st March 2023 and all consequential orders granted pending hearing and determination of the appeal, subject to the applicant providing security of Kshs 500,000 or depositing Kshs 250,000 in court.
- Costs of the application to be in the appeal.
Full Case Text
Judgment text and source record
22 paragraphs
Kibunja v Kuria & another (Environment and Land Appeal E008 of 2023) [2023] KEELC 18912 (KLR) (11 July 2023) (Ruling)
Neutral citation: [2023] KEELC 18912 (KLR)
Republic of Kenya
In the Environment and Land Court at Nakuru
Environment and Land Appeal E008 of 2023
A Ombwayo, J
July 11, 2023
Between
Joseph Ngethe Kibunja
Appellant
and
Karani Kuria
1st Respondent
Land Registrar Nakuru
2nd Respondent
(An appeal from the judgment of the Chief Magistrate’s Court at Nakuru Delivered by Hon. R Kefa (P.M) on 1st March, 2023)
Ruling
1. The applicant Joseph Ngethe Kibunja prays for orders that pending hearing and determination of the intended appeal this court be pleased to order stay of execution of the judgment and decree delivered by Hon R. Kefa Principal Magistrate on the 1st March 2023 and all consequential orders arising therefrom . The application is based on grounds that the application has been made without inordinate delay. That the applicant is likely to suffer substantial loss as he is likely to be evicted. His brother resides in the suit property and is unwell. The applicant is willing to comply with any reasonable consideration to be imposed by the court.
2. The respondent filed grounds of opposition whose import is that the applicant has not raised arguable grounds to merit stay of execution. That the appellant has not obtained any security as a pre-condition for the grant of stay of execution pending hearing and determination of Appeal.
3. That the appellant does not stand to suffer any loss or damage that cannot be compensated by money were he to succeed on appeal.
4. I have considered the rival submissions and do find that the application has been made without inordinate delay as it was made before the expiry of the stay granted by the lower court. On substantial loss, I do find that the applicant is likely to suffer substantial loss if evicted and succeeds on appeal. On security for costs, I do order that the applicant to give security of the value of Kshs500,000 or the deposit of Kshs250,000 in court as security for costs. Cost of the application in the appeal.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 11TH DAY OF JULY 2023. A O OMBWAYOJUDGE